Missouri v. Jenkins Slip Opinion

    (Slip Opinion)

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is 
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been pre­
pared by the Reporter of Decisions for the convenience of the reader. See 
United States v. Detroit Lumber C o 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MISSOURI e t  a l . v. JENKINS, b y  h e r  f r i e n d , AGYEI,
ET AL.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR 
THE EIGHTH CIRCUIT

No. 88-64. Argued February 21, 1989—Decided June 19, 1989

In this major school desegregation litigation in Kansas City, Missouri, in 
which various desegregation remedies were granted against the State of 
Missouri and other defendants, the plaintiff class was represented by a 
Kansas City lawyer (Benson) and by the NAACP Legal Defense and 
Educational Fund, Inc. (LDF). Benson and the LDF requested attor­
ney’s fees under the Civil Rights Attorney’s Fees Awards Act of 1976 (42 
U. S. C. § 1988), which provides with respect to such litigation that 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.” In cal­
culating the hourly rates for Benson’s, his associates’, and the LDF at­
torneys’ fees, the District Court took account of delay in payment by 
using current market rates rather than those applicable at the time the 
services were rendered. Both Benson and the LDF employed numer­
ous paralegals, law clerks, and recent law graduates, and the court 
awarded fees for their work based on market rates, again using current 
rather than historic rates in order to compensate for the delay in 
payment.

Held:
1. The Eleventh Amendment does not prohibit enhancement of a fee 

award under § 1988 against a State to compensate for delay in payment. 
That Amendment has no application to an award of attorney’s fees, ancil­
lary to a grant of prospective relief, against a State, Hutto v. Finney, 
437 U. S. 678, and it follows that the same is true for the calculation of 
the amount of the fee. An adjustment for delay in payment is an appro­
priate factor in determining what constitutes a reasonable attorney’s fee 
under § 1988. Pp. 3-9.

i



II MISSOURI v. JENKINS

Syllabus

2. The District Court correctly compensated the work of paralegals, 
law clerks, and recent law graduates at the market rates for their serv­
ices, rather than at their cost to the attorneys. Clearly, “a reasonable 
attorney’s fee” as used in § 1988 cannot have been meant to compensate 
only work performed personally by members of the Bar. Rather, that 
term must refer to a reasonable fee for an attorney’s work product, and 
thus must take into account the work not only of attorneys, but also the 
work of paralegals and the like. A  reasonable attorney’s fee under 
§ 1988 is one calculated on the basis of rates and practices prevailing in 
the relevant market and one that grants the successful civil rights plain­
tiff a “fully compensatory fee,” comparable to what “is traditional with 
attorneys compensated by a fee-paying client.” In this case, where the 
practice in the relevant market is to bill the work of paralegals sepa­
rately, the District Court’s decision to award separate compensation for 
paralegals, law clerks, and recent law graduates at prevailing market 
rates was fully in accord with § 1988. Pp. 10-14.

838 F. 2d 260, affirmed.

B r e n n a n , J., delivered the opinion of the Court, in which W h i t e , 
B l a c k m u n , S t e v e n s , and K e n n e d y , JJ., joined, and in Parts I and III of 
which O ’C o n n o r  and S c a l i a , JJ., joined. O ’C o n n o r , J., filed an opinion 
concurring in part and dissenting in part, in which S c a l i a , J., joined and 
R e h n q u i s t , C. J., joined in part. R e h n q u i s t , C. J., filed a dissenting 
opinion. M a r s h a l l , J., took no part in the consideration or decision of 
the case.



NOTICE: This opinion is subject to formal revision before publication in the 
preliminary print of the United States Reports. Readers are requested to 
notify the Reporter of Decisions, Supreme Court of the United States, Wash­
ington, D. C. 20543, of any typographical or other formal errors, in order 
that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

No. 88-64

MISSOURI, e t  A L ., PETITIONERS v. KALIMA JEN­
KINS, BY HER FRIEND, KAMAU AG YE I, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

[June 19, 1989]

J u s t i c e  B r e n n a n  delivered the opinion of the Court.
This is the attorney’s-fee aftermath of major school deseg­

regation litigation in Kansas City, Missouri. We granted
certiorari, 488 U. S. ------  (1988), to resolve two questions
relating to fees litigation under 42 U. S. C. § 1988. First, 
does the Eleventh Amendment prohibit enhancement of a fee 
award against a State to compensate for delay in payment? 
Second, should the fee award compensate the work of parale­
gals and law clerks by applying the market rate for their 
work?

I
This litigation began in 1977 as a suit by the Kansas City 

Missouri School District (KCMSD), the School Board, and 
the children of two School Board members, against the State 
of Missouri and other defendants. The plaintiffs alleged that 
the State, surrounding school districts, and various federal 
agencies had caused and perpetuated a system of racial seg­
regation in the schools of the Kansas City metropolitan area. 
They sought various desegregation remedies. KCMSD was 
subsequently realigned as a nominal defendant, and a class of 
present and future KCMSD students was certified as plain­
tiffs. After lengthy proceedings, including a trial that lasted 
714 months during 1983 and 1984, the District Court found the 
State of Missouri and KCMSD liable, while dismissing the



2 MISSOURI v. JENKINS

suburban school districts and the federal defendants. It or­
dered various intradistrict remedies, to be paid for by the 
State and KCMSD, including $260 million in capital improve­
ments and a magnet-school plan costing over $200 million. 
See Jenkins v. Missouri, 807 F. 2d 657 (CA8 1986) (en banc), 
cert, denied, 484 U. S. 816 (1987); Jenkins v. Missouri, 855 
F. 2d 1295 (CA8 1988), cert, granted, 490 U. S . ------ (1989).

The plaintiff class has been represented, since 1979, by 
Kansas City lawyer Arthur Benson and, since 1982, by the 
NAACP Legal Defense and Educational Fund, Inc. (LDF). 
Benson and the LDF requested attorney’s fees under the 
Civil Rights Attorney’s Fees Awards Act of 1976, 42 
U. S. C. §1988.1 Benson and his associates had devoted 
10,875 attorney hours to the litigation, as well as 8,108 hours 
of paralegal and law clerk time. For the LDF the cor­
responding figures were 10,854 hours for attorneys and 
15,517 hours for paralegals and law clerks. Their fee ap­
plications deleted from these totals 3,628 attorney hours 
and 7,046 paralegal hours allocable to unsuccessful claims 
against the suburban school districts. With additions for 
post-judgment monitoring and for preparation of the fee 
application, the District Court awarded Benson a total of ap­
proximately $1.7 million and the LDF $2.3 million. App. to 
Pet. for Cert. A22-A43.

In calculating the hourly rate for Benson’s fees the court 
noted that the market rate in Kansas City for attorneys of 
Benson’s qualifications was in the range of $125 to $175 per 
hour, and found that “Mr. Benson’s rate would fall at the 
higher end of this range based upon his expertise in the area 
of civil rights.” Id., at A26. It calculated his fees on the

1 Section 1988 provides in relevant part: “ In any action or proceeding to 
enforce a provision of sections 1981, 1982, 1983, 1985, and 1986 of this title, 
title IX of Public Law 92-318 [20 U. S. C. 1681 et seq.], or title VI of the 
Civil Rights Act of 1964 [42 U. S. C. 2000d et seq.], the court, in its discre­
tion, may allow the prevailing party, other than the United States, a rea­
sonable attorney’s fee as part of the costs.”



MISSOURI v. JENKINS 3

basis of an even higher hourly rate of $200, however, because 
of three additional factors: the preclusion of other employ­
ment, the undesirability of the case, and the delay in pay­
ment for Benson’s services. Id., at A26-A27. The court 
also took account of the delay in payment in setting the rates 
for several of Benson’s associates by using current market 
rates rather than those applicable at the time the services 
were rendered. Id., at A28-A30. For the same reason, it 
calculated the fees for the LDF attorneys at current market 
rates. Id., at A33.

Both Benson and the LDF employed numerous paralegals, 
law clerks (generally law students working part-time), and 
recent law graduates in this litigation. The court awarded 
fees for their work based on Kansas City market rates for 
those categories. As in the case of the attorneys, it used 
current rather than historic market rates in order to compen­
sate for the delay in payment. It therefore awarded fees 
based on hourly rates of $35 for law clerks, $40 for paralegals, 
and $50 for recent law graduates. Id., at A29-A31, A34. 
The Court of Appeals affirmed in all respects. 838 F. 2d 260 
(CA8 1988).

II
Our grant of certiorari extends to two issues raised by the 

State of Missouri. Missouri first contends that a State can­
not, consistent with the principle of sovereign immunity this 
Court has found embodied in the Eleventh Amendment, be 
compelled to pay an attorney’s fee enhanced to compensate 
for delay in payment. This question requires us to examine 
the intersection of two of our precedents, Hutto v. Finney, 
437 U. S. 678 (1978), and Library of Congress v. Shaw, 478 
U. S. 310 (1986).2

2 The holding of the Court of Appeals on this point, 838 F. 2d, at 265- 
266, is in conflict with the resolution of the same question in Rogers v. 
Okin, 821 F. 2d 22, 26-28 (CA1 1987), cert, denied sub nom. Commis­
sioner, Massachusetts Dept, o f Mental Health v. Rogers, 484 U. S. 1010 
(1988).



4 MISSOURI v. JENKINS

In Hutto v. Finney the lower courts had awarded attor­
ney’s fees against the State of Arkansas, in part pursuant to 
§ 1988, in connection with litigation over the conditions of 
confinement in that State’s prisons. The State contended 
that any such award was subject to the Eleventh Amend­
ment’s constraints on actions for damages payable from a 
State’s treasury. We relied, in rejecting that contention, on 
the distinction drawn in our earlier cases between “retroac­
tive monetary relief” and “prospective injunctive relief.” 
See Edelman v. Jordan, 415 U. S. 651 (1974); Ex parte 
Young, 209 U. S. 123 (1908). Attorney’s fees, we held, be­
longed to the latter category, because they constituted re­
imbursement of “expenses incurred in litigation seeking only 
prospective relief,” rather than “retroactive liability for 
prelitigation conduct.” Hutto, 437 U. S., at 695; see also id., 
at 690. We explained: “Unlike ordinary ‘retroactive’ relief 
such as damages or restitution, an award of costs does not 
compensate the plaintiff for the injury that first brought him 
into court. Instead, the award reimburses him for a portion 
of the expenses he incurred in seeking prospective relief.” 
Id., at 695, n. 24. Section 1988, we noted, fit easily into the 
longstanding practice of awarding “costs” against States, for 
the statute imposed the award of attorney’s fees “as part of 
the costs.” Id., at 695-696, citing Fairmont Creamery Co. 
v. Minnesota, 275 U. S. 70 (1927).

After Hutto, therefore, it must be accepted as settled that 
an award of attorney’s fees ancillary to prospective relief is 
not subject to the strictures of the Eleventh Amendment. 
And if the principle of making such an award is beyond the 
reach of the Eleventh Amendment, the same must also be 
true for the question of how a “reasonable attorney’s fee” is 
to be calculated. See Hutto, supra, at 696-697.

Missouri contends, however, that the principle enunciated 
in Hutto has been undermined by subsequent decisions of this 
Court that require Congress to “express its intention to abro­
gate the Eleventh Amendment in unmistakable language in



MISSOUEI v. JENKINS 5

the statute itself.” Atascadero State Hospital v. Scanlon, 
473 U. S. 234, 243 (1985); Welch v. Texas Dept, of Highways 
and Public Transportation, 483 U. S. 468 (1987). See also
Dellmuth v. Muth, 491 U. S. ------ (1989); Pennsylvania v.
Union Gas Co., 491 U. S .------ (1989). The flaw in this argu­
ment lies in its misreading of the holding of Hutto. It is true 
that in Hutto we noted that Congress could, in the exercise of 
its enforcement power under § 5 of the Fourteenth Amend­
ment, set aside the States’ immunity from retroactive dam­
ages, 437 U. S., at 693, citing Fitzpatrick v. Bitzer, 427 U. S. 
445 (1976), and that Congress intended to do so in enacting 
§ 1988. 437 U. S., at 693-694. But we also made clear that 
the application of § 1988 to the States did not depend on con­
gressional abrogation of the States’ immunity. We did so in 
rejecting precisely the “clear statement” argument that Mis­
souri now suggests has undermined Hutto. Arkansas had 
argued that § 1988 did not plainly abrogate the States’ immu­
nity; citing Employees v. Missouri Dept, of Public Health 
and Welfare, 411 U. S. 279 (1973), and Edelman v. Jordan, 
supra, the State contended that “retroactive liability” could 
not be imposed on the States “in the absence of an extraordi­
narily explicit statutory mandate.” Hutto, 437 U. S., at 695. 
We responded as follows: “ [Tjhese cases [Employees and 
Edelman] concern retroactive liability for prelitigation con­
duct rather than expenses incurred in litigation seeking only 
prospective relief. The Act imposes attorney’s fees ‘as part 
of the costs.’ Costs have traditionally been awarded without 
regard for the States’ Eleventh Amendment immunity.” 
Ibid.

The holding of Hutto, therefore, was not just that Con­
gress had spoken sufficiently clearly to overcome Eleventh 
Amendment immunity in enacting § 1988, but rather that the 
Eleventh Amendment did not apply to an award of attorney’s 
fees ancillary to a grant of prospective relief. See Maine v. 
Thiboutot, 448 U. S. 1, 9, n. 7 (1980). That holding is unaf­
fected by our subsequent jurisprudence concerning the de­



6 MISSOURI v. JENKINS

gree of clarity with which Congress must speak in order to 
override Eleventh Amendment immunity, and we reaffirm it 
today.

Missouri’s other line of argument is based on our decision 
in Library of Congress v. Shaw, supra. Shaw involved an 
application of the longstanding “no-interest rule,” under 
which interest cannot be awarded against the United States 
unless it has expressly waived its sovereign immunity. We 
held that while Congress, in making the Federal Government 
a potential defendant under Title VII of the Civil Rights Act 
of 1964, had waived the United States’ immunity from suit 
and from costs including reasonable attorney’s fees, it had 
not waived the Federal Government’s traditional immunity 
from any award of interest. We thus held impermissible a 
BO percent increase in the “lodestar” fee to compensate for 
delay in payment. Because we refused to find in the lan­
guage of § 1988 a waiver of the United States’ immunity from 
interest, Missouri argues, we should likewise conclude that 
§ 1988 is not sufficiently explicit to constitute an abrogation of 
the States’ immunity under the Eleventh Amendment in re­
gard to any award of interest.

The answer to this contention is already clear from what 
we have said about Hutto v. Finney. Since, as we held in 
Hutto, the Eleventh Amendment does not bar an award of 
attorney’s fees ancillary to a grant of prospective relief, our 
holding in Shaw has no application, even by analogy.3 There

3 Our opinion in Shaw does, to be sure, contain some language that, if 
read in isolation, might suggest a different result in this case. Most sig­
nificantly, we equated compensation for delay with prejudgment interest, 
and observed that “ [pjrejudgment interest . . .  is considered as damages, 
not a component of ‘costs.’ . . . Indeed, the term ‘costs’ has never been 
understood to include any interest component.” Library of Congress v. 
Shaw, 478 U. S. 310, 321 (1986). These observations, however, cannot be 
divorced from the context of the special “no-interest rule” that was at issue 
in Shaw. That rule, which is applicable to the immunity of the United 
States and is therefore not at issue here, provides an “added gloss of strict­
ness,” id., at 318, only where the United States’ liability for interest is at



MISSOURI v. JENKINS 7

is no need in this ease to determine whether Congress has 
spoken sufficiently clearly to meet a “clear statement” 
requirement, and it is therefore irrelevant whether the 
Eleventh Amendment standard should be, as Missouri con­
tends, as stringent as the one we applied for purposes of the 
no-interest rule in Shaw. Rather, the issue here—whether 
the “reasonable attorney’s fee” provided for in § 1988 should 
be calculated in such a manner as to include an enhancement, 
where appropriate, for delay in payment—is a straightfor­
ward matter of statutory interpretation. For this question, 
it is of no relevance whether the party against which fees are 
awarded is a State. The question is what Congress in­
tended—not whether it manifested “the clear affirmative in­
tent . . .  to waive the sovereign’s immunity.” Shaw, 478 
U. S., at 321.4

This question is not a difficult one. We have previously 
explained, albeit in dicta, why an enhancement for delay in 
payment is, where appropriate, part of a “reasonable attor­
ney’s fee.” In Pennsylvania v. Delaware Valley Citizens’ 
Council, 483 U. S. 711 (1987), we rejected an argument that

issue. Our inclusion of compensation for delay within the definition of pre­
judgment interest in Shaw must be understood in light of this broad pro­
scription of interest awards against the United States. Shaw thus does 
not represent a general-purpose definition of compensation for delay that 
governs here. Outside the context of the “no-interest rule” of federal im­
munity, we see no reason why compensation for delay cannot be included 
within § 1988 attorney’s fee awards, which Hutto held to be “costs” not sub­
ject to Eleventh Amendment strictures.

We cannot share J u s t i c e  O ’C o n n o r ’s view that the two cases she cites, 
post, at 4, demonstrate the existence of an equivalent rule relating to State 
immunity that embodies the same ultra-strict rule of construction for inter­
est awards that has grown up around the federal no-interest rule. Com­
pare Shaw, supra, at 314-317 (discussing historical development of the fed­
eral no-interest rule).

4 In Shaw, which dealt with the sovereign immunity of the Federal Gov­
ernment, there was of course no prospective-retrospective distinction as 
there is when, as in Hutto and the present case, it is the Eleventh Amend­
ment immunity of a State that is at issue.



8 MISSOURI v. JENKINS

a prevailing party was entitled to a fee augmentation to com­
pensate for the risk of nonpayment. But we took care to dis­
tinguish that risk from the factor of delay:

“First is the matter of delay. When plaintiffs’ entitle­
ment to attorney’s fees depends on success, their law­
yers are not paid until a favorable decision finally even­
tuates, which may be years later . . . .  Meanwhile, 
their expenses of doing business continue and must be 
met. In setting fees for prevailing counsel, the courts 
have regularly recognized the delay factor, either by 
basing the award on current rates or by adjusting the fee 
based on historical rates to reflect its present value. 
See, e. g., Sierra Club v. EPA, 248 U. S. App. D. C. 
107, 120-121, 769 F. 2d 796, 809-810 (1985); Louisville 
Black Police Officers Organization, Inc. v. Louisville, 
700 F. 2d 268, 276, 281 (CA6 1983). Although delay and 
the risk of nonpayment are often mentioned in the same 
breath, adjusting for the former is a distinct issue . . . .  
We do not suggest . . . that adjustments for delay are 
inconsistent with the typical fee-shifting statute.” Id., 
at 716.

The same conclusion is appropriate under §1988.5 6 Our 
cases have repeatedly stressed that attorney’s fees awarded 
under this statute are to be based on market rates for the 
services rendered. See, e. g., Blanchard v. Bergeron, 489
U. S . ------ (1989); Riverside v. Rivera, 477 U. S. 561 (1986);
Blum v. Stenson, 465 U. S. 886 (1984). Clearly, compensa­
tion received several years after the services were ren­
dered—as it frequently is in complex civil rights litigation—is 
not equivalent to the same dollar amount received reasonably 
promptly as the legal services are performed, as would nor­

5 Delaware Valley was decided under § 304(d) of the Clean Air Act, 42
U. S. C. § 7604(d). We looked for guidance, however, to § 1988 and our 
cases construing it. Pennsylvania v. Delaware Valley Citizens’ Council, 
483 U. S. 711, 713, n. 1 (1987).



MISSOURI v. JENKINS 9

mally be the case with private billings.6 We agree, there­
fore, that an appropriate adjustment for delay in payment — 
whether by the application of current rather than historic 
hourly rates or otherwise—is within the contemplation of the 
statute.

To summarize: We reaffirm our holding in Hutto v. Finney 
that the Eleventh Amendment has no application to an award 
of attorney’s fees, ancillary to a grant of prospective relief, 
against a State. It follows that the same is true for the 
calculation of the amount of the fee. An adjustment for 
delay in payment is, we hold, an appropriate factor in the 
determination of what constitutes a reasonable attorney’s fee 
under § 1988. An award against a State of a fee that includes 
such an enhancement for delay is not, therefore, barred by 
the Eleventh Amendment.

'This delay, coupled with the fact that, as we recognized in Delaware 
Valley, the attorney’s expenses are not deferred pending completion of the 
litigation, can cause considerable hardship. The present case provides an 
illustration. During a period of nearly three years, the demands of this 
case precluded attorney Benson from accepting other employment. In 
order to pay his staff and meet other operating expenses, he was obliged to 
borrow $633,000. As of January 1987, he had paid over $113,000 in inter­
est on this debt, and was continuing to borrow to meet interest payments. 
Record 2336-2339; Tr. 130-131. The LDF, for its part, incurred deficits of 
$700,000 in 1983 and over $1 million in 1984, largely because of this case. 
Tr. 46. If no compensation were provided for the delay in payment, the 
prospect of such hardship could well deter otherwise willing attorneys from 
accepting complex civil rights cases that might offer great benefit to soci­
ety at large; this result would work to defeat Congress’ purpose in enacting 
§ 1988 of “encourag[ing] the enforcement of federal law through lawsuits 
filed by private persons.” Delaware Valley, supra, at 737 (B l a c k m u n , 
J., dissenting).

We note also that we have recognized the availability of interim fee 
awards under § 1988 when a litigant becomes a prevailing party on one 
issue in the course of the litigation. Texas State Teachers Assn. v. Gar­
land Independent School Dist., 489 U. S . ------ , ------ (1989). In economic
terms, such an interim award does not differ from an enhancement for 
delay in payment.



10 MISSOURI v. JENKINS

III
Missouri’s second contention is that the District Court 

erred in compensating the work of law clerks and paralegals 
(hereinafter collectively “paralegals”) at the market rates for 
their services, rather than at their cost to the attorney. 
While Missouri agrees that compensation for the cost of these 
personnel should be included in the fee award, it suggests 
that an hourly rate of $15—which it argued below corre­
sponded to their salaries, benefits, and overhead—would be 
appropriate, rather than the market rates of $35 to $50. Ac­
cording to Missouri, § 1988 does not authorize billing parale­
gals’ hours at market rates, and doing so produces a “wind­
fall” for the attorney.7

We begin with the statutory language, which provides sim­
ply for “a reasonable attorney’s fee as part of the costs.” 42 
U. S. C. § 1988. Clearly, a “reasonable attorney’s fee” can­
not have been meant to compensate only work performed 
personally by members of the bar. Rather, the term must 
refer to a reasonable fee for the work product of an attorney.

7 The Courts of Appeals have taken a variety of positions on this issue. 
Most permit separate billing of paralegal time. See, e. g., Save Our Cum­
berland Mountains, Inc. v. Hodel, 263 U. S. App. D. C. 409, 420, n. 7, 826 
F. 2d 43, 54, n. 7 (1987), vacated in part on other grounds, 273 U. S. App. 
D. C. 78, 857 F. 2d 1516 (1988) (en banc); Jacobs v. Mancuso, 825 F. 2d 
559, 563, and n. 6 (CA1 1987) (collecting cases); Spanish Action Committee 
of Chicago v. Chicago, 811 F. 2d 1129, 1138 (CA7 1987); Ramos v. Lamm, 
713 F. 2d 546, 558-559 (CA10 1983); Richardson v. Byrd, 709 F. 2d 1016, 
1023 (CA5), cert, denied sub nom. Dallas County Commissioners Court v. 
Richardson, 464 U. S. 1009 (1983). See also Riverside v. Rivera, 477 
U. S. 561, 566, n. 2 (1986) (noting lower-court approval of hourly rate for 
law clerks). Some courts, on the other hand, have considered paralegal 
work “out-of-pocket expense,” recoverable only at cost to the attorney. 
See, e. g., Northcross v. Board o f Education of Memphis City Schools, 611 
F. 2d 624, 639 (CA6 1979), cert, denied, 447 U. S. 911 (1980); Thomberry 
v. Delta Air Lines, Inc., 676 F. 2d 1240, 1244 (CA9 1982), vacated, 461 
U. S. 952 (1983). At least one Court of Appeals has refused to permit any 
recovery of paralegal expense apart from the attorney’s hourly fee. 
Abrams v. Baylor College o f Medicine, 805 F. 2d 528, 535 (CA5 1986).



MISSOURI v. JENKINS 11

Thus, the fee must take into account the work not only of at­
torneys, but also of secretaries, messengers, librarians, jani­
tors, 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. The parties have sug­
gested no reason why the work of paralegals should not be 
similarly compensated, nor can we think of any. We thus 
take as our starting point the self-evident proposition that 
the “reasonable attorney’s fee” provided for by statute should 
compensate the work of paralegals, as well as that of attor­
neys. The more difficult question is how the work of parale­
gals is to be valuated in calculating the overall attorney’s fee.

The statute specifies a “reasonable” fee for the attorney’s 
work product. In determining how other elements of the at­
torney’s fee are to be calculated, we have consistently looked 
to the marketplace as our guide to what is “reasonable.” In 
Blum v. Stenson, 465 U. S. 886 (1984), for example, we re­
jected an argument that attorney’s fees for nonprofit legal 
service organizations should be based on cost. We said: 
“The statute and legislative history establish that ‘reasonable 
fees’ under § 1988 are to be calculated according to the pre­
vailing market rates in the relevant community . . . .” Id., 
at 895. See also, e. g., Delaware Valley, 483 U. S., at 732 
(O ’C o n n o r , J., concurring) (controlling question concerning 
contingency enhancements is “how the market in a commu­
nity compensates for contingency”); Rivera, 477 U. S., at 591 
(R e h n q u i s t , J., dissenting) (reasonableness of fee must be 
determined “in light of both the traditional billing practices in 
the profession, and the fundamental principle that the award 
of a ‘reasonable’ attorney’s fee under § 1988 means a fee that 
would have been deemed reasonable if billed to affluent plain­
tiffs by their own attorneys”). A reasonable attorney’s fee 
under § 1988 is one calculated on the basis of rates and prac­
tices prevailing in the relevant market, i. e., “in line with 
those [rates] prevailing in the community for similar services 
by lawyers of reasonably comparable skill, experience, and



12 MISSOURI v. JENKINS

reputation,” Blum, supra, at 896, n. 11, and one that grants 
the successful civil rights plaintiff a “fully compensatory fee,” 
Hensley v. Eckerhart, 461 U. S. 424, 435 (1983), comparable 
to what “is traditional with attorneys compensated by a fee­
paying client.” S. Rep. No. 94-1011, p. 6 (1976).

If an attorney’s fee awarded under § 1988 is to yield the 
same level of compensation that would be available from the 
market, the “increasingly widespread custom of separately 
billing for the services of paralegals and law students who 
serve as clerks,” Ramos v. Lamm, 713 F. 2d 546, 558 (CA10 
1983), must be taken into account. All else being equal, the 
hourly fee charged by an attorney whose rates include para­
legal work in her hourly fee, or who bills separately for the 
work of paralegals at cost, will be higher than the hourly fee 
charged by an attorney competing in the same market who 
bills separately for the work of paralegals at “market rates.” 
In other words, the prevailing “market rate” for attorney 
time is not independent of the manner in which paralegal 
time is accounted for.8 Thus, if the prevailing practice in a 
given community were to bill paralegal time separately at 
market rates, fees awarded the attorney at market rates for 
attorney time would not be fully compensatory if the court 
refused to compensate hours billed by paralegals or did so 
only at “cost.” Similarly, the fee awarded would be too high 
if the court accepted separate billing for paralegal hours in a 
market where that was not the custom.

We reject the argument that compensation for paralegals 
at rates above “cost” would yield a “windfall” for the prevail­
ing attorney. Neither petitioners nor anyone else, to our 
knowledge, have ever suggested that the hourly rate applied 
to the work of an associate attorney in a law firm creates a 
windfall for the firm’s partners or is otherwise improper

8 The attorney who bills separately for paralegal time is merely distrib­
uting her costs and profit margin among the hourly fees of other members 
of her staff, rather than concentrating them in the fee she sets for her own 
time.



MISSOURI v. JENKINS 13

under § 1988, merely because it exceeds the cost of the attor­
ney’s services. If the fees are consistent with market rates 
and practices, the “windfall” argument has no more force 
with regard to paralegals than it does for associates. And it 
would hardly accord with Congress’ intent to provide a “fully 
compensatory fee” if the prevailing plaintiff’s attorney in a 
civil rights lawsuit were not permitted to bill separately for 
paralegals, while the defense attorney in the same litigation 
was able to take advantage of the prevailing practice and ob­
tain market rates for such work. Yet that is precisely the 
result sought in this case by the State of Missouri, which ap­
pears to have paid its own outside counsel for the work of 
paralegals at the hourly rate of $35. Record 2696, 2699.9

Nothing in § 1988 requires that the work of paralegals in­
variably be billed separately. If it is the practice in the rele­
vant market not to do so, or to bill the work of paralegals only 
at cost, that is all that § 1988 requires. Where, however, the 
prevailing practice is to bill paralegal work at market rates, 
treating civil rights lawyers’ fee requests in the same way is 
not only permitted by § 1988, but also makes economic sense. 
By encouraging the use of lower-cost paralegals rather than 
attorneys wherever possible, permitting market-rate billing 
of paralegal hours “encourages cost-effective delivery of legal 
services and, by reducing the spiraling cost of civil rights liti­
gation, furthers the policies underlying civil rights statutes.” 
Cameo Convalescent Center, Inc. v. Senn, 738 F. 2d 836, 846

9 A variant of Missouri’s “windfall” argument is the following: “ If parale­
gal expense is reimbursed at a rate many times the actual cost, will attor­
neys next try to bill separately—and at a profit—for such items as secre­
tarial time, paper clips, electricity, and other expenses?” Reply Brief for 
Petitioners 15-16. The answer to this question is, o f course, that attor­
neys seeking fees under § 1988 would have no basis for requesting separate 
compensation of such expenses unless this were the prevailing practice in 
the local community. The safeguard against the billing at a profit of secre­
tarial services and paper clips is the discipline of the market.



14 MISSOURI v. JENKINS

(CA7 1984), cert, denied, 469 U. S. 1106 (1985).10
Such separate billing appears to be the practice in most 

communities today.11 In the present case, Missouri concedes 
that “the local market typically bills separately for paralegal 
services,” Tr. of Oral Arg. 14, and the District Court found 
that the requested hourly rates of $35 for law clerks, $40 for 
paralegals, and $50 for recent law graduates were the pre­
vailing rates for such services in the Kansas City area. App. 
to Pet. for Cert. A29, A31, A34. Under these circum­
stances, the court’s decision to award separate compensation 
at these rates was fully in accord with § 1988.

10 It has frequently been recognized in the lower courts that paralegals 
are capable of carrying out many tasks, under the supervision of an attor­
ney, that might otherwise be performed by a lawyer and billed at a higher 
rate. Such work might include, for example, factual investigation, includ­
ing locating and interviewing witnesses; assistance with depositions, in­
terrogatories, and document production; compilation of statistical and fi­
nancial data; checking legal citations; and drafting correspondence. Much 
such work lies in a gray area of tasks that might appropriately be per­
formed either by an attorney or a paralegal. To the extent that fee appli­
cants under § 1988 are not permitted to bill for the work of paralegals at 
market rates, it would not be surprising to see a greater amount of such 
work performed by attorneys themselves, thus increasing the overall cost 
of litigation.

Of course, purely clerical or secretarial tasks should not be billed at a 
paralegal rate, regardless of who performs them. What the court in John­
son v. Georgia Highway Ex-press, Inc., 488 F. 2d 714, 717 (CA5 1974), said 
in regard to the work of attorneys is applicable by analogy to paralegals: 
“ It is appropriate to distinguish between legal work, in the strict sense, 
and investigation, clerical work, compilation of facts and statistics and 
other work which can often be accomplished by non-lawyers but which a 
lawyer may do because he has no other help available. Such non-legal 
work may command a lesser rate. Its dollar value is not enhanced just 
because a lawyer does it.”

11 Amicus National Association of Legal Assistants reports that 77 per­
cent of 1,800 legal assistants responding to a survey o f the association’s 
membership stated that their law firms charged clients for paralegal work 
on an hourly billing basis. Brief for National Association of Legal Assist­
ants as Amicus Curiae 11.



MISSOURI v. JENKINS 15

IV
The courts below correctly granted a fee enhancement to 

compensate for delay in payment and approved compensation 
of paralegals and law clerks at market rates. The judgment 
of the Court of Appeals is therefore

Affirmed.

J u s t ic e  M a r s h a l l  took no part in the consideration or 
decision of this case.



SUPREME COURT OF THE UNITED STATES

No. 88-64

MISSOURI, e t  a l ., PETITIONERS v. KALIMA JEN­
KINS, BY HER FRIEND, KAMAU AGYEI, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

[June 19, 1989]

J u s t ic e  O ’C o n n o r , with whom J u s t i c e  S c a l i a  joins, and 
with whom T h e  C h i e f  J u s t ic e  joins in part, concurring in 
part and dissenting in part.

I agree with the Court that 42 U. S. C. § 1988 allows 
compensation for the work of paralegals and law clerks at 
market rates, and therefore join Parts I and III of its opinion. 
I do not join Part II, however, for in my view the Elev­
enth Amendment does not permit enhancement of attorney’s 
fees assessed against a State as compensation for delay in 
payment.

The Eleventh Amendment does not, of course, provide a 
State with across-the-board immunity from all monetary re­
lief. Relief that “serves directly to bring an end to a viola­
tion of federal law is not barred by the Eleventh Amendment 
even though accompanied by a substantial ancillary effect” on 
a State’s treasury. Papasan v. Allain, 478 U. S. 265, 278 
(1986). Thus, in Milliken v. Bradley, 433 U. S. 267, 289-290 
(1977), the Court unanimously upheld a decision ordering a 
State to pay over $5 million to eliminate the effects of de jure 
segregation in certain school systems. On the other hand, 
“[rjelief that in essence serves to compensate a party injured 
in the past,” such as relief “expressly denominated as dam­
ages,” or “relief [that] is tantamount to an award of damages 
for a past violation of federal law, even though styled as 
something else,” is prohibited by the Eleventh Amendment.



2 MISSOURI v. JENKINS

Papasan, 478 U. S., at 278. The erucial question in this case 
is whether that portion of respondents’ attorney’s fees based 
on current hourly rates is properly characterized as retroac­
tive monetary relief.

In Library of Congress v. Shaw, 478 U. S. 310 (1986), the 
Court addressed whether the attorney’s fees provision of 
Title VII, 42 U. S. C. §2000e-5(k), permits an award of at­
torney’s fees against the United States to be enhanced in 
order to compensate for delay in payment. In relevant part, 
§ 2000e-5(k) provides:

“In any action or proceeding under this subchapter the 
court, in its discretion, may allow the prevailing party, 
other than the [EEOC] or the United States, a reason­
able attorney’s fees as part of the costs, and the [EEOC] 
and the United States shall be liable for costs the same 
as a private person.”

The Court began its analysis in Shaw by holding that “inter­
est is an element of damages separate from damages on the 
substantive claim.” 478 U. S., at 314 (citing C. McCormick, 
Law of Damages §50, p. 205 (1935)). Given the “no-inter­
est” rule of federal sovereign immunity, under which the 
United States is not liable for interest absent an express stat­
utory waiver to the contrary, the Court was unwilling to con­
clude that, by equating the United States’ liability to that 
of private persons in § 2000e-5(k), Congress had waived the 
United States’ immunity from interest. 478 U. S., at 314- 
319. The fact that § 2000e-5(k) used the word “reasonable” 
to modify “attorney’s fees” did not alter this result, for 
the Court explained that it had “consistently . . . refused to 
impute an intent to waive immunity from interest into the 
ambiguous use of a particular word or phrase in a statute.” 
Id., at 320. The description of attorney’s fees as costs in 
§2000e-5(k) also did not mandate a contrary conclusion be­
cause “[p]rejudgment interest. . .  is considered as damages, 
not a component of ‘costs,’ ” and the “term ‘costs’ has never 
been understood to include any interest component.” Id.,



MISSOURI v. JENKINS 3

at 321 (emphasis added) (citing 10 C. Wright, A. Miller, & 
M. Kane, Federal Practice and Procedure §§2664, 2666, 2670 
(2d ed. 1983); 2 A, Sedgwick & G. Van Nest, Sedgwick on 
Damages 157-158 (7th ed. 1880)). Finally, the Court re­
jected the argument that the enhancement was proper be­
cause the “no-interest” rule did not prohibit compensation 
for delay in payment: “ Interest and a delay factor share an 
identical function. They are designed to compensate for the 
belated receipt of money.” 478 U. S., at 322.

As the Court notes, ante, at 6-7, n. 3, the “no-interest” 
rule of federal sovereign immunity at issue in Shaw provided 
an “added gloss of strictness,” 478 U. S., at 318, and may 
have explained the result reached by the Court in that case, 
i. e., that §2000e-5(k) did not waive the United States’ im­
munity against awards of interest. But there is not so much 
as a hint anywhere in Shaw that the Court’s discussions and 
definitions of interest and compensation for delay were dic­
tated by, or limited to, the federal “no-interest” rule. As the 
quotations above illustrate, the Court’s opinion in Shaw is 
filled with broad, unqualified language. The dissenters in 
Shaw did not disagree with the Court’s sweeping character­
ization of interest and compensation for delay as damages. 
Rather, they argued only that §2000e-5(k) had waived the 
immunity of the United States with respect to awards of 
interest. See id., at 323-327 (B r e n n a n , J., dissenting). 
I therefore emphatically disagree with the Court’s statement 
that “Shaw . . . does not represent a general-purpose defini­
tion of compensation for delay that governs here.” Ante, at 
7, n. 3.

Two general propositions that are relevant here emerge 
from Shaw. First, interest is considered damages, and not 
costs. Second, compensation for delay, which serves the 
same function as interest, is also the equivalent of damages. 
These two propositions make clear that enhancement for 
delay constitutes retroactive monetary relief barred by the 
Eleventh Amendment. Given my reading of Shaw, I do not



4 MISSOURI v. JENKINS

think the Court’s reliance on the cost rationale of § 1988 set 
forth in Hutto v. Finney, 437 U. S. 678 (1978), is persuasive. 
Because Shaw teaches that compensation for delay consti­
tutes damages and cannot be considered costs, see 478 U. S., 
at 321-322, Hutto is not controlling. See Hutto, 437 U. S., 
697, n. 27 (“we do not suggest that our analysis would be the 
same if Congress were to expand the concept of costs beyond 
the traditional category of litigation expenses”). Further­
more, Hutto does not mean that inclusion of attorney’s fees as 
costs in a statute forecloses a challenge to the enhancement of 
fees as compensation for delay in payment. If it did, then 
Shaw would have been resolved differently, for § 2000e-5(k) 
lists attorney’s fees as costs.

Even if I accepted the narrow interpretation of Shaw prof­
fered by the Court, I would disagree with the result reached 
by the Court in Part II of its opinion. On its own terms, the 
Court’s analysis fails. The Court suggests that the defini­
tions of interest and compensation for delay set forth in Shaw 
would be triggered only by a rule of sovereign immunity bar­
ring awards of interest against the States: “Outside the con­
text of the ‘no-interest rule’ of federal immunity, we see no 
reason why compensation for delay cannot be included within 
§ 1988 attorney’s fee awards!.]” Ante, at 7, n. 3. But the 
Court does not inquire whether such a rule exists. In fact, 
there is a federal rule barring awards of interest against 
States. See Virginia v. West Virginia, 238 U. S. 202, 234 
(1915) (“Nor can it be deemed in derogation of the sover­
eignty of the State that she should be charged with interest if 
her agreement properly construed so provides.”) (emphasis 
added); United States v. North Carolina, 136 U. S. 211, 221 
(1890) (“general principle” is that “an obligation of the State 
to pay interest, whether as interest or as damages, on any 
debt overdue, cannot arise except by the consent and contract 
of the State, manifested by statute, or in a form authorized 
by statute”) (emphasis added). The Court has recently held 
that the rule of immunity set forth in Virginia and North



MISSOURI v. JENKINS 5

Carolina is inapplicable in situations where the State does 
not retain any immunity, see West Virginia v. United States, 
479 U. S. 305, 310-312 (1987) (State can be held liable for in­
terest to the United States, against whom it has no sovereign 
immunity), but the rule has not otherwise been limited, and 
there is no reason why it should not be relevant in the Elev­
enth Amendment context presented in this case.

As Virginia and North Carolina indicate, a State can 
waive its immunity against awards of interest. See also 
Clark v. Barnard, 108 U. S. 436, 447 (1883). The Missouri 
courts have interpreted Mo. Rev. Stat. §408.020 (1979 and 
Supp. 1989), providing for prejudgment interest on money 
that becomes due and payable, and §408.040, providing for 
prejudgment interest on court judgments and orders, as 
making the State liable for interest. See Denton Construc­
tion Co. v. Missouri State Highway Comm’n, 454 S. W. 2d 
44, 59-60 (Mo. 1970) (§408.020); Steppelman v. State High­
way Comm’n of Missouri, 650 S. W. 2d 343, 345 (Mo. App. 
1983) (§408.040). There can be no argument, however, that 
these Missouri statutes and cases allow interest to be 
awarded against the State here. A “State’s waiver of sov­
ereign immunity in its own courts is not a waiver of the Elev­
enth Amendment immunity in the federal courts.” Penn- 
hurst State School and Hospital v. Halderman, 465 U. S. 89, 
99, n. 9 (1984).

The fact that a State has immunity from awards of interest 
is not the end of the matter. In a case such as this one in­
volving school desegregation, interest or compensation for 
delay (in the guise of current hourly rates) can theoretically 
be awarded against a State despite the Eleventh Amend­
ment’s bar against retroactive monetary liability. The 
Court has held that Congress can set aside the States’ Elev­
enth Amendment immunity in order to enforce the provisions 
of the Fourteenth Amendment. See City of Rome v. United 
States, 446 U. S. 156, 179 (1980); Fitzpatrick v. Bitzer, 427 
U. S. 445, 456 (1976). Congress must, however, be unequiv­



6 MISSOURI v. JENKINS

ocal in expressing its intent to abrogate that immunity. See 
generally Atascadero State Hospital v. Scanlon, 473 U. S. 
234, 243 (1985) (“Congress must express its intention to abro­
gate the Eleventh Amendment in unmistakable language in 
the statute itself.”).

In Hutto the Court was able to avoid deciding whether 
§ 1988 met the “clear statement” rule only because attorney’s 
fees (without any enhancement) are not considered retroac­
tive in nature. See 437 U. S., at 695-697. The Court can­
not do the same here, where the attorney’s fees were en­
hanced to compensate for delay in payment. Cf. Ostemeck
v. Ernst & Whinney, ------U. S. --------, ------ (1989) (“unlike
attorney’s fees, which at common law were regarded as an 
element of costs, . . . prejudgment interest traditionally has 
been considered part of the compensation due [the] plaintiff”) 
(slip op. 6).

In relevant part, § 1988 provides:
“In any action or proceeding to enforce a provision of 
sections 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 
reasonable attorney’s fees as part of the costs.”

In my view, § 1988 does not meet the “clear statement” rule 
set forth in Atascadero. It does not mention damages, inter­
est, compensation for delay, or current hourly rates. As one 
federal court has correctly noted, “Congress has not yet 
made any statement suggesting that a § 1988 attorney’s fee 
award should include prejudgment interest.” Rogers v. 
Okin, 821 F . 2d 22, 27 (CAl 1987). A comparison of the stat­
ute at issue in Shaw also indicates that § 1988, as currently 
written, is insufficient to allow attorney’s fees assessed 
against a State to be enhanced to compensate for delay in 
payment. The language of § 1988 is undoubtedly less expan­
sive than that of §2000e-5(k), for §1988 does not equate 
the liability of States with that of private persons. Since



MISSOURI v. JENKINS 7

§ 2000e-5(k) does not allow enhancement of an award of attor­
ney’s fees to compensate for delay, it is logical to conclude 
that § 1988, a more narrowly worded statute, likewise does 
not allow interest (through the use of current hourly rates) to 
be tacked on to an award of attorney’s fees against a State.

Compensation for delay in payment was one of the reasons 
the District Court used current hourly rates in calculating 
respondents’ attorney’s fees. See App. to Pet. for Cert. 
A26-A27; 838 F. 2d 260, 263, 265 (CA8 1988). I would re­
verse the award of attorney’s fees to respondents and re­
mand so that the fees can be calculated without taking com­
pensation for delay into account.



SUPREME COURT OF THE UNITED STATES

No. 88-64

MISSOURI, et al., PETITIONERS v. KALIMA JEN­
KINS, BY HER FRIEND, KAMAU AGYEI, ET AL.

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF 
APPEALS FOR THE EIGHTH CIRCUIT

[June 19, 1989]

Chief Justice Rehnquist, dissenting.
I agree with Justice O’Connor that the Eleventh Amend­

ment does not permit an award of attorney’s fees against a 
State which includes compensation for delay in payment. 
Unlike Justice O’Connor, however, I do not agree with the 
Court’s approval of the award of law clerk and paralegal fees 
made here.

Section 1988 gives the district courts discretion to allow 
the prevailing party in an action under § 1983 “a reasonable 
attorney’s fee as part of the costs.” 42 U. S. § 1988. The 
Court reads this language as authorizing recovery of “a ‘rea­
sonable’ fee for the attorney’s work product,” ante, at 11, 
which, the Court concludes, may include separate compensa­
tion for the services of law clerks and paralegals. But the 
statute itself simply uses the very familiar term “a reason­
able attorney’s fee,” which to those untutored in the Court’s 
linguistic juggling means a fee charged for services rendered 
by an individual who has been licensed to practice law. Be­
cause law clerks and paralegals have not been licensed to 
practice law in Missouri, it is difficult to see how charges for 
their services may be separately billed as part of “attorney’s 
fees.” And since a prudent attorney customarily includes 
compensation for the cost of law clerk and paralegal services, 
like any other sort of office overhead—from secretarial staff, 
janitors, and librarians, to telephone service, stationery, and



2 MISSOURI v. JENKINS

paper clips—in his own hourly billing rate, allowing the pre­
vailing party to recover separate compensation for law clerk 
and paralegal services may result in “double recovery.”

The Court finds justification for its ruling in the fact that 
the prevailing practice among attorneys in Kansas City is to 
bill clients separately for the services of law clerks and para­
legals. But I do not think Congress intended the meaning of 
the statutory term “attorney’s fee” to expand and contract 
with each and every vagary of local billing practice. Under 
the Court’s logic, prevailing parties could recover at market 
rates for the cost of secretaries, private investigators, and 
other types of lay personnel who assist the attorney in pre­
paring his case, so long as they could show that the prevailing 
practice in the local market was to bill separately for these 
services. Such a result would be a sufficiently drastic depar­
ture from the traditional concept of “attorney’s fees” that I 
believe new statutory authorization should be required for it. 
That permitting separate billing of law clerk and paralegal 
hours at market rates might “ ‘reduc[e] the spiraling cost of 
civil rights litigation’ ” by encouraging attorneys to delegate 
to these individuals tasks which they would otherwise per­
form themselves at higher cost, ante, at 13, and n. 10, may be 
a persuasive reason for Congress to enact such additional leg­
islation. It is not, however, a persuasive reason for us to re­
write the legislation which Congress has in fact enacted. 
See Badaracco v. Commissioner, 464 U. S. 386, 398 (1984) 
(“ [cjourts are not authorized to rewrite a statute because 
they might deem its effects susceptible of improvement”).

I also disagree with the State’s suggestion that law clerk 
and paralegal expenses incurred by a prevailing party, if not 
recoverable at market rates as “attorney’s fees” under § 1988, 
are nonetheless recoverable at actual cost under that statute. 
The language of § 1988 expands the traditional definition of 
“costs” to include “a reasonable attorney’s fee,” but it cannot 
fairly be read to authorize the recovery of all other out-of- 
pocket expenses actually incurred by the prevailing party in



MISSOURI v. JENKINS 3

the course of litigation. Absent specific statutory authoriza­
tion for the recovery of such expenses, the prevailing party 
remains subject to the limitations on cost recovery imposed 
by Federal Rule of Civil Procedure 54(d) and 28 U. S. C. 
§ 1920, which govern the taxation of costs in federal litigation 
where a cost-shifting statute is not applicable. Section 1920 
gives the district court discretion to tax certain types of costs 
against the losing party in any federal litigation. The stat­
ute specifically enumerates six categories of expenses which 
may be taxed as costs: fees of the court clerk and marshal; 
fees of the court reporter; printing fees and witness fees; 
copying fees; certain docket fees; and fees of court-appointed 
experts and interpreters. We have held that this list is ex­
clusive. Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 
U. S. 437 (1987). Since none of these categories can possibly 
be construed to include the fees of law clerks and paralegals, 
I would also hold that reimbursement for these expenses may 
not be separately awarded at actual cost.

I would therefore reverse the award of reimbursement for 
law clerk and paralegal expenses.