United States Court of Appeals
Fifth Circuit
F I L E D
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT August 12, 2004
Charles R. Fulbruge III
Clerk
No. 02-41655
CARLTON GADDIS and LATANZA GADDIS, INDIVIDUALLY AND AS NEXT
FRIEND OF COURTLIN GADDIS, A MINOR; COURTLIN GADDIS, A MINOR,
Plaintiffs-Appellees,
versus
UNITED STATES OF AMERICA, ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellant.
Appeal from the United States District Court
For the Eastern District of Texas
Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,
WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,
DENNIS, CLEMENT, PRADO, and PICKERING, Circuit Judges.
DeMOSS, Circuit Judge:
We took this case en banc to consider whether guardian ad
litem fees could be taxed against the government in a Federal Tort
Claims Act (“FTCA”) case, in light of Crawford Fitting Co. v. J.T.
Gibbons, Inc., 482 U.S. 437 (1987). For the reasons that follow,
we conclude that federal district courts may continue to choose to
tax guardian ad litem fees as court costs against nonprevailing
parties, including against the government in an FTCA case. We thus
AFFIRM the decision of the district court to tax guardian ad litem
fees against the government here.
BACKGROUND
The panel, in Gaddis v. United States, No. 02-41655, 2003 WL
21635308, at *1 & n.1 (5th Cir. July 10, 2003) (unpublished), gave
a concise statement of the facts and background, which we reproduce
below:
Carlton and Latanza Gaddis were stopped at a street
intersection when a postal employee drove his government
vehicle into theirs. Latanza, who was pregnant,
initially suffered minor discomfort, but a few weeks
later she prematurely delivered their son, Courtlin, with
serious birth defects. The Gaddises sued the United
States under the Federal Tort Claims Act (“FTCA”), 28
U.S.C. § 2671 et seq., for negligence. They requested,
and the district court appointed, a guardian ad litem for
Courtlin.1 After a bench trial, the court found the
United States liable for Courtlin’s injuries and awarded
the Gaddises over $4 million in damages. The court also
taxed as costs $46,299 in guardian ad litem fees against
the government under Fed. R. Civ. P. 54(d)(1).
The Gaddis parents had moved for the appointment of George Bean
(“Mr. Bean”) as guardian ad litem for Courtlin to represent his
interests in the automobile accident litigation. The government
opposed such appointment as premature, arguing that there was no
allegation of a conflict of interest among the Gaddises nor of any
prejudice to Courtlin’s interests. In reply, the Gaddis parents
1
Mr. and Mrs. Gaddis, who also sued the United States for
loss of consortium with Courtlin, feared that an unexpected
conflict of interest with Courtlin might occur during the
litigation.
2
urged that Federal Rule of Civil Procedure 17(c)2 authorizes the
court appointment of a guardian ad litem in cases involving minors
and that Courtlin should be appointed a guardian ad litem to ensure
that no one take an unfair advantage in relation to him. The
district court agreed with the Gaddis parents and appointed
Mr. Bean as guardian ad litem “to represent the interests of the
minor Plaintiff, COURTLIN GADDIS, in the [] litigation.” The
district court further ordered that “the fees charged for the
Ad Litem’s services be reasonable and necessary for representation
of the Minor” and that “the fees charged shall be taxed as court
costs subject to approval by the Court.”
After the bench trial concluded with a finding of government
liability, Mr. Bean filed a motion for his guardian ad litem fees
and requested they be charged against the government as costs
2
Rule 17(c), Infants or Incompetent Persons, provides:
Whenever an infant or incompetent person has a
representative, such as a general guardian, committee,
conservator, or other like fiduciary, the representative
may sue or defend on behalf of the infant or incompetent
person. An infant or incompetent person who does not
have a duly appointed representative may sue by a next
friend or by a guardian ad litem. The court shall
appoint a guardian ad litem for an infant or incompetent
person not otherwise represented in an action or shall
make such other order as it deems proper for the
protection of the infant or incompetent person.
Fed. R. Civ. P. 17(c).
3
pursuant to Federal Rule of Civil Procedure 54(d).3 The government
opposed the motion on several grounds. The government relied on
Crawford Fitting for its claim that the district court lacked
subject matter jurisdiction to award Mr. Bean guardian ad litem
expenses as costs under Rule 54(d) at all, and specifically to tax
such costs against the government because the government in
28 U.S.C. § 2412(a)4 had only waived its sovereign immunity to pay
3
Rule 54(d), Costs; Attorneys’ Fees, provides in part:
(1) Costs Other than Attorneys’ Fees. Except when
express provision therefor is made either in a statute of
the United States or in these rules, costs other than
attorneys’ fees shall be allowed as of course to the
prevailing party unless the court otherwise directs; but
costs against the United States, its officers, and
agencies shall be imposed only to the extent permitted by
law. Such costs may be taxed by the clerk on one day’s
notice. On motion served within 5 days thereafter, the
action of the clerk may be reviewed by the court.
Fed. R. Civ. P. 54(d)(1).
4
Section 2412(a)(1), under Costs and fees, provides:
Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this
title, but not including the fees and expenses of
attorneys, may be awarded to the prevailing party in any
civil action brought by or against the United States or
any agency or any official of the United States acting in
his or her official capacity in any court having
jurisdiction of such action. A judgment for costs when
taxed against the United States shall, in an amount
established by statute, court rule, or order, be limited
to reimbursing in whole or in part the prevailing party
for the costs incurred by such party in the litigation.
28 U.S.C.A. § 2412(a)(1) (West 2004). The government further
contends that because the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 1346(b), §§ 2671-2680, does not include a provision
4
for costs as enumerated in 28 U.S.C. § 1920,5 and guardian ad litem
fees are not included in § 1920. The government also contended
that even if the court could award the guardian ad litem fees as
costs, most of Mr. Bean’s claimed expenses were for his legal work
as an attorney on behalf of Courtlin, not for services provided as
Courtlin’s guardian ad litem.
regarding costs, § 2412(a)(1) is the applicable provision governing
costs to be taxed against the nonprevailing government in an FTCA
case.
5
Section 1920, Taxation of costs, provides:
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 necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation 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
allowance, included in the judgment or decree.
28 U.S.C.A. § 1920 (West 2004).
5
The district court then held a hearing to determine issues
pertaining to the entry of judgment concerning Courtlin. During
that hearing, the court fully considered the government’s arguments
regarding the taxation of guardian ad litem fees and determined
that it was bound to follow our post-Crawford Fitting precedents in
Dickerson v. United States, 280 F.3d 470, 478 (5th Cir. 2002);
Lebron v. United States, 279 F.3d 321, 332 (5th Cir. 2002); and
Gibbs v. Gibbs, 210 F.3d 491, 506-08 (5th Cir. 2000), which cases
all allowed for the taxation of the prevailing party’s guardian ad
litem fees as costs under Rule 54(d), but not including fees
attributable to any legal services performed by the guardian
ad litem.6 These three cases were decided after Crawford Fitting,
and the district court correctly pointed out that the Dickerson and
Lebron cases both specifically involved the taxation of guardian
ad litem fees against the government where the plaintiff had
prevailed in an FTCA claim.
After determining that it could properly tax Mr. Bean’s
6
Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002);
Lebron v. United States, 279 F.3d 321 (5th Cir. 2002); and Gibbs v.
Gibbs, 210 F.3d 491 (5th Cir. 2000), all relied on and affirmed
duPont v. Southern National Bank, 771 F.2d 874 (5th Cir. 1985), a
case decided before Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437 (1987), where this Court held that the expenses of a
guardian ad litem appointed by the court were properly taxable as
costs pursuant to Rule 54(d). duPont, 771 F.2d at 882. That is,
such costs were allowed where the guardian ad litem was serving in
his role as an officer of the court versus serving any attorney ad
litem function. Id.
6
guardian ad litem fees against the government, the district court
proceeded to analyze Mr. Bean’s expenses in this case – attempting
to distinguish between Mr. Bean’s time spent as Courtlin’s guardian
ad litem (taxable against the government as a cost) versus his time
spent serving as a legal advisor to Courtlin (certainly entitled to
be paid, but not chargeable against the government as a cost).
After a thorough analysis, which took place at the hearing, the
court disallowed $1687.50, which appeared to be in the nature of
attorney’s fees, and allowed a total of $46,299.00 as legitimate
guardian ad litem fees. In the final judgment, the district court
concluded that “the United States shall pay, as a taxable cost of
court, the Guardian Ad Litem’s fee in the amount of $46,299.00.”
The government timely appealed the taxation of guardian
ad litem fees only, and a panel of this Court, in a per curiam
unpublished opinion, affirmed the award of costs. We agreed to
hear the case en banc.
DISCUSSION
Here, the government seeks further review of the discrete
legal issue of whether guardian ad litem fees are taxable costs at
all, or are at least not taxable against the United States. As the
panel indicated, this is a pure question of law subject to de novo
review. See Roe v. Tex. Dep’t of Protective & Regulatory Servs.,
299 F.3d 395, 400 (5th Cir. 2002).
Whether a district court may tax guardian ad litem fees as costs
7
against the nonprevailing government in an FTCA action.
Regarding this issue, the government made the same arguments
on appeal as it did in the district court, and as it makes here to
the en banc Court. First, the government claims the Supreme Court
has ruled in Crawford Fitting that the costs allowed by Federal
Rule of Civil Procedure 54(d) to a prevailing party in a federal
proceeding are limited to those itemized in 28 U.S.C. § 1920, which
does not include any provision relating to guardian ad litem fees.
Second, the government submits that under Rule 54(d) and 28 U.S.C.
§ 2412(a)(1), costs may be levied against it, but only as
enumerated in § 1920; that is, the government has waived none of
its sovereign immunity as to costs not authorized by statute.
In Crawford Fitting, the Supreme Court explained that
28 U.S.C. § 18217 limits the amount of litigants’ witness fees
7
Section 1821, Per diem and mileage generally; subsistence,
provides in part:
(a)(1) Except as otherwise provided by law, a witness in
attendance at any court of the United States, or before
a United States Magistrate Judge, or before any person
authorized 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 section 451 of this title, any court created by Act of
Congress in a territory which is invested with any
jurisdiction of a district court of the United States.
(b) A witness shall be paid an attendance fee of $40 per
day for each day’s attendance. A witness shall also be
paid the attendance fee for the time necessarily occupied
8
awardable, and § 1920 allows a court to tax such fees as costs only
within those limits. 482 U.S. at 441-42. In the absence of
statutory or contractual authorization for more generous payments,
federal courts are constrained by the $30-per-day (now $40-per-day)
cap when ordering one side to pay for the other’s expert witnesses.
Id. at 444-45. Crawford Fitting involved two cases of awards to
prevailing parties that covered all the expenses reasonably
incurred for their experts, bestowed under the authority of Rule
54(d) as costs. The Court rejected the excessive awards,
concluding that “absent explicit statutory or contractual
authorization for the taxation of the expenses of a litigant’s
witness as costs, federal courts are bound by the limitations set
out in 28 U.S.C. § 1821 and § 1920.” Id. at 445. In coming to
that holding, the Supreme Court considered the interplay among Rule
54(d), § 1920, and § 1821(b):
Petitioners argue that since § 1920 lists which
expenses a court “may” tax as costs, that section only
authorizes taxation of certain items. In their view,
§ 1920 does not preclude taxation of costs above and
beyond the items listed, and more particularly, amounts
in excess of the § 1821(b) fee. Thus, the discretion
granted by Rule 54(d) is a separate source of power to
tax as costs expenses not enumerated in § 1920. We
think, however, that no reasonable reading of these
in going to and returning from the place of attendance at
the beginning and end of such attendance or at any time
during such attendance.
28 U.S.C.A. § 1821(a)-(b) (West 2004). The subsection (b) in
effect at the time of Crawford Fitting provided for a $30 per diem
cap; it was increased to $40 by amendment in 1990. Id. note.
9
provisions together can lead to this conclusion, for
petitioners’ view renders § 1920 superfluous. If Rule
54(d) grants courts discretion to tax whatever costs may
seem appropriate, then § 1920, which enumerates the costs
that may be taxed, serves no role whatsoever. We think
the better view is that § 1920 defines the term “costs”
as used in Rule 54(d). Section 1920 enumerates expenses
that a federal court may tax as a cost under the
discretionary authority found in Rule 54(d). It is
phrased permissively because Rule 54(d) generally grants
a federal court discretion to refuse to tax costs in
favor of the prevailing party. One of the items
enumerated in § 1920 is the witness fee, set by § 1821(b)
at $30 per day.
We cannot accept an interpretation of Rule 54(d)
that would render any of these specific statutory
provisions entirely without meaning. Repeals by
implication are not favored, and petitioners proffer the
ultimate in implication, for Rule 54(d) and §§ 1920 and
1821 are not even inconsistent. We think that it is
clear that in §§ 1920 and 1821, Congress comprehensively
addressed the taxation of fees for litigants’ witnesses.
This conclusion is all the more compelling when we
consider that § 1920(6) allows the taxation, as a cost,
of the compensation of court-appointed expert witnesses.
There is no provision that sets a limit on the
compensation for court-appointed expert witnesses in the
way that § 1821(b) sets a limit for litigants’ witnesses.
It is therefore clear that when Congress meant to set a
limit on fees, it knew how to do so. We think that the
inescapable effect of these sections in combination is
that a federal court may tax expert witness fees in
excess of the $30-per-day limit set out in § 1821(b) only
when the witness is court-appointed. The discretion
granted by Rule 54(d) is not a power to evade this
specific congressional command. Rather, it is solely a
power to decline to tax, as costs, the items enumerated
in § 1920.
Id. at 441-42. We note that neither Crawford Fitting, the opinions
of the two lower courts which were appealed in that case, nor any
of the briefs submitted makes any specific mention of the propriety
of taxing guardian ad litem fees as costs pursuant to Rule 54(d) or
10
otherwise.
The Supreme Court restated its holding from Crawford Fitting
in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83,
86 (1991), superceded by statute as stated in Landgraf v. USI Film
Products, 511 U.S. 244, 251 (1994): “[W]e held that [§§ 1920 and
1821] define the full extent of a federal court’s power to shift
litigation costs absent express statutory authority to go further.”
The Court explained: “Crawford Fitting said that we would not
lightly find an implied repeal of § 1821 or of § 1920, which it
held to be an express limitation upon the types of costs which,
absent other authority, may be shifted by federal courts.” Casey,
499 U.S. at 87.
The precise issue in Casey was whether fees for services
rendered by experts in civil rights litigation may be shifted to
the nonprevailing party pursuant to § 1988, which permits the award
of “a reasonable attorney’s fee as part of the costs.” Id. at 97-
102; 42 U.S.C.A. § 1988(b) (West 2004). The Court ultimately held:
Ҥ 1988 conveys no authority to shift expert fees. When experts
appear at trial, they are of course eligible for the fee provided
by § 1920 and § 1821.” Casey, 499 U.S. at 102. Again, neither
Casey, the opinion below, nor any of the briefs submitted makes any
specific mention of the propriety of taxing guardian ad litem fees
as costs pursuant to Rule 54(d) or otherwise. Moreover, Congress
disagreed with the Court shortly after it provided its
11
interpretation of § 1988 as to attorney’s fees in Casey and in 1991
amended § 1988 to explicitly provide courts the discretion to
“include expert fees as part of the attorney’s fee.” 42 U.S.C.A.
§ 1988(c) (West 2004). The Court itself conceded that § 113 of the
1991 Civil Rights Act, which added subsection (c) to § 1988, was
obviously drafted with Casey’s erroneous result in mind. Landgraf,
511 U.S. at 251.
This Court has certainly followed the specific holding of the
Supreme Court in Crawford Fitting, as restated in Casey, as to the
monetary cap on litigants’ witness fees explicitly set by Congress
in § 1821(b), which cannot be circumvented by federal courts under
the sole authority of Rule 54(d).8 In fact, this Court in Coats v.
Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993), also stated:
“Rule 54(d) of the Federal Rules of Civil Procedure provides for an
award of costs ‘to the prevailing party unless the court otherwise
directs.’ 28 U.S.C. § 1920 defines recoverable costs, and a
district court may decline to award the costs listed in the statute
but may not award costs omitted from the list.” Id. at 891
8
See United States ex rel. Wallace v. Flintco Inc., 143 F.3d
955, 972 (5th Cir. 1998) (applying Crawford Fitting and setting
aside cross-awards of expert witness fees in excess of those
provided for by § 1821); Pedraza v. Jones, 71 F.3d 194, 196 n.3
(5th Cir. 1995) (noting how cases that allowed expert witness fees
in excess of the amount specified by § 1821 were overruled by
Crawford Fitting); Coats v. Penrod Drilling Corp., 5 F.3d 877, 891
(5th Cir. 1993) (citing Crawford Fitting to affirm the district
court’s decision not to award expert and witness fees).
12
(footnote and citation omitted). However, in Coats, as in Crawford
Fitting and Casey, again the taxation of guardian ad litem fees
pursuant to Rule 54(d) or otherwise was not at issue. Rather, we
were considering the propriety of the costs of obtaining
transcripts for several depositions necessarily obtained for use at
trial, travel expenses, costs of “blow-ups,” video technician fees,
party witness fees, party expert fees, and costs of photocopies
necessarily obtained for use in the case. Coats, 5 F.3d at 891-92.
Here, we acknowledge the government’s argument as it is
inferred from the language of Crawford Fitting quoted above. That
is, because § 1920 is silent as to guardian ad litem fees, it does
not include or define them as costs. Therefore, such guardian ad
litem fees are not taxable as costs against a nonprevailing party
under Rule 54(d), particularly the government under § 2412(a),
which expressly cross-references § 1920.
However, we easily reject the government’s argument: first,
because Federal Rule Civil Procedure 17(c) constitutes the
alternative express statutory authorization as required by Crawford
Fitting to provide district courts with the inherent power and
discretion to tax guardian ad litem fees as costs against the
nonprevailing party, including the government in an FTCA case;
second, because even if Rule 17(c) did not constitute the
alternative express statutory authority as required by Crawford
Fitting, we reasonably interpret the meaning of the phrase “court
13
appointed experts” in § 1920(6) to encompass guardians ad litem
such that district courts can tax their compensation as costs per
§ 1920, including against the government in an FTCA case; and
finally, because even in light of Crawford Fitting, this Court’s
precedent dictates the propriety of district courts taxing guardian
ad litem fees as costs, including against the government in an FTCA
case.
Rule 17(c) grants district courts the inherent authority to tax
guardian ad litem fees as costs.
We start with Federal Rule of Civil Procedure 17(c), which is
the source of the district court’s authority to appoint Mr. Bean as
guardian ad litem for the minor Courtlin Gaddis in this FTCA case.
We note that the Supreme Court has never construed, interpreted, or
applied Rule 17(c) in any opinion.9 The only historical note in
9
The Supreme Court has briefly mentioned guardians ad
litem in the context of interpreting one federal statute, solely by
analogy, in Rowland v. California Men’s Colony, Unit II Men’s
Advisory Council, 506 U.S. 194, 211-12 (1993), a case that
considered whether an agency or organization could proceed as a
civil party in forma pauperis, where the Court held that only
natural persons, not artificial entities, could proceed in forma
pauperis as civil litigants per 28 U.S.C. § 1915. The Court
recited in a footnote:
On occasion, when a party is a minor or incompetent, or
fails to cooperate with appointed counsel, or is for some
other reason unable to file a timely affidavit, we will
accept an affidavit from a guardian ad litem or an
attorney. By accepting such an affidavit, we bend the
requirement that the affiant state that “he” is indigent
and that “he” believes “he” is entitled to relief. In
such a case, however, it is clear that the party himself
is a “person” within the meaning of § 1915. The only
question is whether Congress intended to deny § 1915
14
the published rules indicates that Rule 17(c) “is substantially
former Equity Rule 70 (Suits by or Against Incompetents) with
slight additions.”10 Fed. R. Civ. P. 17 advisory committee’s note.
It is clear in this Circuit that Rule 17(c) authorizes and
mandates that district courts appoint a guardian ad litem in the
situation where the interests of the minor’s general
representatives, the Gaddis parents here, may conflict with the
interests of the person, their minor child Courtlin here, who might
otherwise be represented by such general representatives. Chrissy
F. ex rel. Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25, 27
(5th Cir. 1989); Adelman ex rel. Adelman v. Graves, 747 F.2d 986,
benefits to such a person who for some reason peculiar to
him is disabled from filing an affidavit. It is quite a
different question whether Congress intended to extend
§ 1915 to entities that, by their nature, could never
meet the statute’s requirements.
Id. at 205 n.6. This language in no way addresses the appropriate
circumstances for a court to appoint guardians ad litem per Rule
17(c) nor how such guardians ad litem are to be paid.
10
Equity Rule 70, Suits by or Against Incompetents, as it
appeared in the eighth edition of the New Federal Equity Rules,
provided:
Guardians ad litem to defend a suit may be appointed by
the court, or by any judge thereof, for infants or other
persons who are under guardianship, or otherwise
incapable of suing for themselves. All infants and other
persons so incapable may sue by their guardians, if any,
or by their prochein ami; subject, however, to such
orders as the court or judge may direct for the
protection of infants and other persons.
Fed. Equity R. 70 (8th ed. 1933).
15
988 (5th Cir. 1984) (“[T]he courts have consistently recognized
that they have inherent power to appoint a guardian ad litem [or
next friend] when it appears that the minor’s [or incompetent
person’s] general representative has interests which may conflict
with those of the person he is supposed to represent.”(second and
third alteration in original)(citation omitted). Judges may not
“ignore or overlook such a fundamental requirement for the
protection of infants [or incompetent persons].” Adelman, 747 F.2d
at 989 (alteration in original) (citing Roberts v. Ohio Cas. Ins.
Co., 256 F.2d 35, 39 (5th Cir. 1958)). The need to protect the
minor’s or incompetent person’s rights and interests in federal
court proceedings is extremely vital; this is why “[i]t is within
the district court’s discretion to determine [the minor’s] need for
[guardian ad litem] representation, and who may best fill that
need.” Adelman, 747 F.2d at 989. This is also why, “as a matter
of proper procedure, the court should usually appoint a guardian ad
litem.” Id. (citing Roberts, 256 F.2d at 39).
This power to appoint guardians ad litem pursuant to Rule
17(c) is important not only to ensure that the minor’s rights and
interests are fully protected in cases where the minor is otherwise
represented and there may be conflicts of interest, but also to
ensure that the minor has proper access to the federal judicial
system at all. Chrissy F., 883 F.2d at 27 (noting that when making
this Rule 17(c) guardian ad litem appointment determination, “the
16
district court should consider that access to the courts by
aggrieved persons should not be unduly limited”). Such fair access
to the judicial system by minors and incompetent persons is
enhanced if the district court exercises not only the power to
appoint guardians ad litem, but also, as Rule 17(c) expressly
directs, to “make such other order as it deems proper for the
protection of the infant or incompetent person.” Fed. R. Civ. P.
17(c). This additional power is necessarily required so the
district court can effectuate its appointment of a competent,
independent guardian ad litem.
It is precisely due to such legitimate and practical reasons
that district courts must also have the inherent authority and
discretion to tax guardian ad litem fees as costs against
nonprevailing parties. See Panitch v. State of Wisconsin, 451 F.
Supp. 132, 136 (E.D. Wis. 1978) (“Although Rule 17(c) is silent on
the subject, we believe that an award for the reasonable value of
services provided by the guardian ad litem may be taxed as costs
against all of the defendants, jointly and severally.”). The
Panitch court ordered the nonprevailing defendants to pay the minor
plaintiff’s guardian ad litem fees as costs under Rule 17(c) “as a
necessary consequence of the court’s equitable responsibility to
protect the interests of minor litigants who cannot protect
themselves.” Id. (citation omitted). Although we acknowledge
Rule 17(c) does not specifically state that district courts may tax
17
guardian ad litem fees as costs, we find the Panitch court’s
reasoning persuasive as to the district court’s inherent authority
to tax guardian ad litem fees as costs under the express mandate of
Rule 17(c).
Thus, a district court may tax guardian ad litem fees as costs
per Rule 17(c) because we find Rule 17(c) to constitute the
alternative express statutory authorization as required by Crawford
Fitting. See, e.g., ICG Communications, Inc. v. Allegiance
Telecom, 211 F.R.D. 610, 613 (N.D. Cal. 2002) (noting each Federal
Rule of Civil Procedure has the imprimatur of Congress such that
Rule 26 constituted a law for purposes of 27 U.S.C. § 222).
Likewise, the inherent powers and responsibility under Rule 17(c)
to make such orders as the court deems proper also constitute the
alternative express statutory authorization to tax guardian
ad litem fees as costs to meet the requirements of § 2412(a)(1) and
defeat any associated claim of sovereign immunity by the
nonprevailing government in an FTCA case.11 In the absence of any
11
The FTCA expressly states that: “The United States shall
be liable, respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private
individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages.” 28 U.S.C. §
2674 (emphasis added); see also id. § 1346(b)(1) (describing
exclusive jurisdiction of district courts for civil actions brought
against the United States as defendant “for money damages . . . for
injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
18
Supreme Court holding or instruction otherwise, we therefore
exercise our authority as an en banc Court to hold that under Rule
17(c), the district courts have inherent authority and discretion
to determine:
(a) Whether a guardian ad litem needs to be appointed
to protect the interests of the minor or
incompetent person, and if so, who will be
appointed to best serve in that capacity;
(b) Whether the guardian ad litem will be compensated
for his services; and if so, the basis upon which
the value of such services shall be determined, so
long as the guardian ad litem is acting in his
guardian ad litem capacity and not in any attorney
ad litem capacity; and
(c) Whether the compensation payable to the guardian ad
litem will be treated (1) as a court cost to be
taxable against the nonprevailing party or (2) as
an expense to be payable out of any funds recovered
by or payable to the minor or incompetent person on
whose behalf the guardian ad litem was appointed.
Section 1920(6) grants district courts the statutory authority to
tax guardian ad litem fees as costs against the nonprevailing
government in an FTCA case.
private person, would be liable to the claimant . . . .”).
The Supreme Court discussed the broad nature and extent of the
government’s waiver of sovereign immunity under the FTCA in United
States v. Yellow Cab Co., 340 U.S. 543 (1951). There, the Court
stated that “the [FTCA] waives the Government’s immunity from suit
in sweeping language” and “unquestionably.” Id. at 547 (emphasis
added). Moreover, the Court noted that because the Federal Rules
of Civil Procedure apply to “all civil actions,” the former
language of the FTCA which referred specifically to the application
of the Rules was omitted as unnecessary. Id. at 553 n.9. Thus,
there is no question that FTCA actions are properly subject to the
Rules. See Simon v. United States, 891 F.2d 1154, 1156 (5th Cir.
1990); United States v. Acord, 209 F.2d 709, 711 (10th Cir. 1954).
19
Alternatively, were Rule 17(c) not construed by the Supreme
Court to constitute the alternative express statutory authority as
required by Crawford Fitting to provide district courts with the
inherent power and discretion to tax guardian ad litem fees as
costs, this Court concludes that subsection (6) of § 1920 providing
for “[c]ompensation of court appointed experts” can reasonably be
read to include fees for services rendered by a guardian ad litem
appointed by a court pursuant to Rule 17(c).
We have clearly stated that Crawford Fitting “limits judicial
discretion with regard to the kind of expenses that may be
recovered as costs; it does not, however, prevent courts from
interpreting the meaning of the phrases used in § 1920.” West Wind
Africa Line, Ltd. v. Corpus Christi Marine Servs. Co., 834 F.2d
1232, 1238 (5th Cir. 1988); see also Cengr v. Fusibond Piping Sys.,
Inc., 135 F.3d 445, 454 (7th Cir. 1998) (“Under Crawford [Fitting],
courts are allowed to interpret the meaning of the phrases used in
§ 1920.”); Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175,
177 (9th Cir. 1990) (finding the court’s interpretation of
§ 1920(1) “supported by recent decisions from the Fifth and the
Seventh Circuits that have held that courts are free to interpret
what constitutes taxable costs after Crawford [Fitting]”); SK Hand
Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 944 (7th Cir.
1988) (agreeing with the Fifth Circuit and describing the court’s
authority to interpret the meaning of the phrases in § 1920,
20
despite Crawford Fitting).
In West Wind, we determined that even though § 1920 does not
explicitly enumerate depositions in its list of costs, courts have
properly interpreted § 1920(2) providing for “fees of the court
reporter” and § 1920(4) providing for “fees for exemplification and
copies of papers necessarily obtained for use in the case” as
statutorily authorizing the taxation of the costs of original
deposition transcripts and copies. 834 F.2d at 1238; United States
v. Kolesar, 313 F.2d 835, 838-39 (5th Cir. 1963) (holding the cost
of a deposition copy taxable against the government in an FTCA case
as a matter of statutory construction under § 1920(2)); see also
Cengr, 135 F.3d at 454 (finding deposition transcript expenses to
be taxable costs as a matter of statutory construction under
§ 1920(2) as stenographic transcripts, and photocopying expenses
authorized under § 1920(4) as exemplification fees); Aflex Corp.,
914 F.2d at 177 (“The cost of deposition copies is ‘encompassed’ by
section 1920(2), and is therefore properly taxed under the Crawford
[Fitting] holding[].”); Maxwell v. Hapag-Lloyd Aktiengesellschaft,
Hamburg, 862 F.2d 767, 770 (9th Cir. 1988) (interpreting § 1920 and
finding the costs of photographic materials used at trial
encompassed by § 1920(4)’s allowance for “[f]ees for
exemplification and copies of papers necessarily obtained for use
in the case”); S.K. Hand, 852 F.2d at 944 (finding deposition
transcript expenses to be costs encompassed by § 1920(2)); Federal
21
Procedure, Lawyer’s Edition § 26:54 (2003) (“Even though
28 U.S.C.A. § 1920 does not specifically mention depositions, the
Supreme Court’s Crawford Fitting decision does not preclude courts
from finding that deposition transcripts are authorized by § 1920,
as the Supreme Court did not prevent courts from interpreting the
meaning of the phrases used in § 1920.”) (footnote omitted). Also,
section 1920(1)’s phrase “[f]ees of the clerk and marshal” has been
interpreted by the Ninth Circuit to include private process
servers’ fees as taxable costs because the service of summonses and
subpoenas is now done almost exclusively by private parties
employed for that purpose, not the U.S. Marshal, even though there
is no express provision authorizing the payment of private process
servers in § 1920. Aflex Corp., 914 F.2d at 178.
Similarly, even though § 1920 does not specifically mention
guardian ad litem fees in its list of costs, a guardian ad litem
appointed by a court pursuant to Rule 17(c) can be reasonably
interpreted as a court appointed expert under § 1920(6).12 The
guardian ad litem is an officer of the court with “full
responsibility to assist the court to secure a just, speedy, and
inexpensive determination of the action.” Noe v. True, 507 F.2d 9,
12
We note that at least one district court, after Crawford
Fitting was decided, has found the fees and expenses of a guardian
ad litem taxable as costs specifically under § 1920 together with
Rule 54(d), although the court declined to name under which
provision of § 1920 guardian ad litem fees were included. Allstate
Ins. Co., Inc. v. Jones, 763 F. Supp. 1101, 1102 (M.D. Ala. 1991).
22
12 (6th Cir. 1974) (internal quotations and citation omitted). The
guardian ad litem’s special duty is to submit to the court for its
consideration and decision every question involving the statutory
and constitutional rights of the minor that may be affected by the
action. See Chrissy F., 883 F.2d at 27 (noting how the appointment
of guardians ad litem alleviate the risk of the minor party
becoming “a pawn to be manipulated on a chess board larger than his
own case”) (citation omitted). Guardians ad litem thus perform
independent functions that are integral and essential to the
judicial process. See Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir.
1989) (finding guardians ad litem are entitled to quasi-judicial
immunity because of same).
Therefore, guardians ad litem appointed by the court
reasonably serve as experts in the sense that they liaise with the
court and are charged with the important duty of providing their
insight as to how the judicial process is or is not comporting with
the best interests of the minor or incompetent person involved.
While there is some indication in the legislative history that
court appointed expert as used in § 1920(6) refers to a court
appointed expert as appointed pursuant to Federal Rule of Evidence
706,13 the plain statutory language of § 1920(6) does not so
13
See H.R. Rep. 95-1687, at 12 (1978), reprinted in 1978
U.S.C.C.A.N. 4652, 4664. Prior to the 1978 amendment of 28 U.S.C.
§ 1920, which added the entirety of subsection (6), there was no
specific subsection that dealt with either interpreters or court
appointed experts. The 1978 amendment was passed as part of the
23
narrowly limit the interpretation of court appointed expert. This
en banc Court is thus not constrained to so narrowly interpret the
category of court appointed expert. Therefore, we find that the
court appointment of a guardian ad litem pursuant to Rule 17(c)
clearly falls within the reasonable scope of § 1920(6)’s
authorization for courts to tax the costs of “court appointed
experts.”14 This finding also defeats any claim of sovereign
immunity by the government because § 2412(a)(1) expressly provides
that § 1920 costs are taxable against the nonprevailing
government.15
Court Interpreters Act, so the language about Federal Rule of
Evidence 706 governing what a “court appointed expert” is, while
located in the legislative history, seems to be an afterthought,
especially considering that the crux of the House report is
directed toward the need for and process of appointing and
budgeting for court language interpreters, not other court
appointed experts. The report also indicates that the original
impetus for the Court Interpreters Act was the Sixth Circuit’s
decision in United States ex rel. Negron v. New York, 434 F.2d 386,
390-91 (6th Cir. 1970), which held that the Sixth Amendment
requires that non-English-speaking criminal defendants be informed
of their right to simultaneous interpretation of proceedings at the
government’s expense. H.R. Rep. 95-1687, at 3 (1978), reprinted in
1978 U.S.C.C.A.N. 4652, 4653-54. There is no such historic basis
given for why costs of court appointed experts should be allowed,
only the abrupt one-sentence reference to Rule 706's application.
14
Even West Virginia University Hospitals, Inc. v. Casey,
499 U.S. 83 (1991), which restated the holding of Crawford Fitting,
seems to condone the practice of courts interpreting the language
of the categories of expenses listed in § 1920. Id. at 87 (noting
how no subsection of § 1920 could be “reasonably read to include
fees for services rendered by an expert employed by a party in a
nontestimonial, advisory capacity”) (emphasis added).
15
We again note the sweeping and unquestionable waiver of
sovereign immunity by the government under the FTCA. Yellow Cab,
24
This Circuit’s post-Crawford Fitting precedent provides for the
taxation of guardian ad litem fees as costs against the government
in an FTCA case.
Alternatively, were guardian ad litem fees not construed by
the Supreme Court to be reasonably included in § 1920's list of
taxable costs, this Court concludes that our post-Crawford Fitting
precedent16 dictates the continued propriety of district courts to
tax guardian ad litem fees as costs against nonprevailing parties,
including the government in an FTCA case. While we recognize the
underlying treatment the Supreme Court gave to the interplay
between Rule 54(d) and § 1920 in Crawford Fitting, we are reluctant
to and thus do not apply any such proscription here to the taxation
of guardian ad litem fees as costs against the government in an
FTCA case where the plaintiffs prevailed. We decline to read
Crawford Fitting as restricting us in this case for the following
reasons:
340 U.S. at 547. We also note that the Court quoted from the text
of the statutory provision which ultimately became the FTCA:
“Costs shall be allowed in all courts to the successful claimant to
the same extent as if the United States were a private litigant,
except that such costs shall not include attorneys’ fees.” Id. at
547 n.4. Although this language was removed when that provision
was reenacted as the present FTCA in 1948, the Court made clear
that “[w]e rely on the meaning of the language in the original Act
and read the revised language as carrying it out.” Id. Thus, we
properly construe the plain meaning of “court appointed expert” in
§ 1920(6) as an enumerated cost with the government’s broad waiver
of sovereign immunity in mind.
16
Dickerson, 280 F.3d at 478; Lebron, 279 F.3d at 332; Gibbs,
210 F.3d at 506-08.
25
(a) No court in this Circuit ever has read Crawford
Fitting to disallow the taxation of guardian ad
litem fees against nonprevailing parties, including
the government in FTCA cases;
(b) In addition to the precedents in this Circuit, each
other circuit that has spoken on whether guardian
ad litem fees can be taxed as court costs, either
before or after Crawford Fitting – including the
Fourth, Eighth, Tenth, and D.C. Circuits – has
agreed that they can17;
(c) Several district courts, including those in the
Seventh and Eleventh Circuits, have also agreed
that guardian ad litem fees can be taxed as costs18;
17
Hull v. United States, 53 F.3d 1125, 1128-29 (10th Cir.
1995) (upholding taxation of guardian ad litem fees as costs
against nonprevailing government in an FTCA case under Rule 54(d))
(post-Crawford Fitting); Kollsman v. Cohen, 996 F.2d 702, 706 (4th
Cir. 1993) (remanding for the district court to determine which
costs were attributable to role of guardian ad litem versus
attorney ad litem and to charge them against nonprevailing party
pursuant to court’s authority under Rule 54(d)) (post-Crawford
Fitting); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 854
(D.C. Cir. 1981) (holding the district court properly allowed
guardian ad litem fees to be taxed as costs) (pre-Crawford
Fitting), abrogated on other grounds, Duggan v. Keto, 554 A.2d
1126, 1139-40 (D.C. 1989); Franz v. Buder, 38 F.2d 605, 606 (8th
Cir. 1930) (allowing taxation of guardian ad litem fees as costs
pursuant to Federal Equity Rule 70) (pre-Crawford Fitting).
18
Calva-Cerqueira v. United States, 281 F. Supp. 2d 279, 301
(D.D.C. 2003) (allowing taxation of guardian ad litem expenses as
costs against the nonprevailing government in an FTCA action
pursuant to Rule 54(d)) (post-Crawford Fitting); Jones, 763 F.
Supp. at 1102 (allowing prevailing party to recover fees and
expenses of guardian ad litem as taxable costs pursuant to § 1920
and Rule 54(d)) (post-Crawford Fitting); United States v. 1,197.29
Acres of Land, More or Less, Situate in Butler County, State of
Kan., 759 F. Supp. 728, 735 (D. Kan. 1991) (“The court appointed
guardian ad litem is entitled to a reasonable fee for his services
in this action, to be set by the court and taxed as costs.”) (post-
Crawford Fitting); United States v. Certain Lots in City of
Virginia Beach, Va. Known as Lots Eighteen (18) and Nineteen (19),
in Block Three (3), 657 F. Supp. 1062, 1066 (E.D. Va. 1987) (taxing
26
(d) Neither the term “guardian ad litem” nor the phrase
“guardian ad litem fees” appears anywhere in the
Supreme Court’s decision in Crawford Fitting, nor
in any brief submitted to the Supreme Court in
Crawford Fitting, nor in the opinions of either of
the two cases from the Fifth Circuit considered by
the Supreme Court in Crawford Fitting;
(e) We have found no Supreme Court opinion that
addresses in any way the propriety of charging
guardian ad litem fees as costs to be paid by the
nonprevailing party in any proceeding in federal
court;
(f) Finally, the practice of assessing guardian ad
litem fees as costs against a nonprevailing party
is clearly recognized by state courts applying
their respective state statutes and rules governing
the appointment and payment of guardians ad litem.19
For these reasons we conclude that the Supreme Court did not have
the subject of guardian ad litem fees before it in rendering its
opinion in Crawford Fitting; and because of the wide and deep
precedents in this Circuit and other federal courts, we are not
obligated to extend the language of Crawford Fitting to overrule a
guardian ad litem fees as court costs against nonprevailing United
States) (pre-Crawford Fitting); Panitch v. State of Wisconsin, 451
F. Supp. 132, 136 (E.D. Wis. 1978) (taxing guardian ad litem fees
as costs against all nonprevailing parties pursuant to Rule 17(c),
though the Rule is “silent on the subject”) (pre-Crawford Fitting).
19
See, e.g., Ala. R. Civ. P. 17(d) (West 2003); 755 Ill. Comp.
Stat. Ann. 5/27-4 (West 2004); Mich. Comp. Laws Ann. § 600.2045
(West 2004); N.C. Gen. Stat. § 1A-1(b)(2) (2004) (codifying N.C. R.
Civ. P. 17); Tex. R. Civ. P. 173 (Vernon 2003); 6A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1570, at 506 (2d ed. 1990)(noting how the law of
several states provides for the taxation of guardian ad litem fees
as costs).
27
practice that has been widely accepted as fair and proper in the
absence of express language from the Supreme Court requiring that
change.
Overall, we thus hold that district courts retain the
discretion to award guardian ad litem fees as court costs and
assess them against nonprevailing parties, including the government
in an FTCA case.20
Whether the district court here appropriately assessed the award of
guardian ad litem fees.
District courts have broad discretion in determining the
appropriateness of an award of costs. Dickerson, 280 F.3d at 478
(citing Gibbs, 210 F.3d at 500). We review a district court’s
award or denial of costs, including guardian ad litem fees, for an
abuse of discretion. Dickerson, 280 F.3d at 478 (citations
20
This Court notes that district courts sitting in diversity
can look to the applicable state statutes governing the appointment
and payment of guardians ad litem, instead of Rules 17(c) and
54(d), and § 1920. See, e.g., Kollsman, 996 F.2d at 705 n.2
(correcting district court’s application of the Virginia guardian
ad litem statutes and applying Rules 17(c) and 54(d) instead where
district court had erred in finding diversity jurisdiction);
duPont, 771 F.2d at 882 n.6 (noting that applicable Texas law
regarding taxation of guardian ad litem fees as costs could apply
in diversity case); Mulholland v. Schneider Serv. Co., Inc.,
661 F.2d 708, 712 (8th Cir. 1981) (applying Missouri statute
regarding costs of defendant guardian ad litem in diversity case).
But see Miron v. APCO Corp., 289 F. Supp. 915, 916 (E.D. Wis. 1968)
(applying Rule 54(d) discretion to not award guardian ad litem fees
in a diversity case instead of the Wisconsin statute that would
have required such award).
28
omitted). “[W]here the same person acts in the capacities as both
a minor’s guardian ad litem and as his attorney ad litem, only the
person’s expenses in the former role are taxable as costs under
Fed. R. Civ. P. 54(d)." Id. (quoting Gibbs, 210 F.3d at 506).
Here, the district court underwent a thorough expense-by-
expense determination as to which of Mr. Bean’s fees were in the
nature of legal services. The court found that certain of
Mr. Bean’s case law and statutory research and the drafting of his
motion for fees were not properly chargeable and disallowed them as
costs. We conclude the district court did not abuse its broad
discretion to determine the appropriate amount of costs to be
awarded to Mr. Bean.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and arguments, for the reasons set
forth above, we AFFIRM the decision of the district court to award
the court appointed guardian ad litem his fees as a court cost
chargeable against the nonprevailing government in this FTCA case.
We also AFFIRM the amount of guardian ad litem fees awarded.
AFFIRMED.
29
KING, Chief Judge, dissenting:
I respectfully dissent. For the reasons cogently explained in
Parts II.A-B and III of Judge Smith’s dissenting opinion, I would
hold that guardian ad litem fees cannot be taxed as costs of court
under the authority of Rule 54(d) because they are not enumerated
in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441-42 (1987). As to whether Rule 17 provides
a separate source of authority, it could well be that the power to
appoint a guardian ad litem carries with it an inherent power to
order payment: out of the award, out of some res before the court,
from the parents, or possibly from another private party before the
court; the bounds of the district court’s authority in such
practical matters are difficult to mark. But, whatever may be true
as regards the liability of a private litigant, Rule 17 does not
(and arguably could not) provide the clear and explicit waiver of
sovereign immunity that would permit an order directed at the
government, which is the issue in today’s case. See, e.g., United
States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992); cf. 28
U.S.C. § 2412(a)(1).
30
ultimately able to agree on nothing more than
a result: Guardian ad litem fees may be taxed
SMITH, dissenting, joined by JOLLY, as costs against the government despite sover-
EMILIO M. GARZA, BENAVIDES, and eign immunity and despite Crawford Fitting
PRADO: Co. v. J.T. Gibbons, Inc., 482 U.S. 437
(1987). The doctrinal basis for that result is so
In an act of Orwellian doublethink,21 the illusory, however, that the majority feels com-
majority concludes that although “Rule 17(c) pelled to insulate itself in layer upon layer of
does not specifically state” that guardian ad “alternative” holdings. As a result, the true
litem fees may be taxed as costs, it neverthe- basis for today’s decision remains a mys-
less provides “express statutory authorization” terySSeven to the majority that wrought it.
for that result. Compare Maj. Op. at 18 with
id. at 13, 18.22 Emboldened by that cogent in- The unescapable reality is that the federal
sight, the majority then embarks on a broad rules and statutes fail to provide that ad litem
survey of legal fictions, highlighted by an im- fees may be taxed as costs, and the only other
pliedly explicit waiver of sovereign immunity authority for that proposition, duPont v. S.
and the discovery that a statute has binding Nat’l Bank, 771 F.2d 874 (5th Cir. 1985), fails
force despite its repeal in 1948. to survive Crawford Fitting. Because the ma-
jority is unable to accept the policy implica-
As if sitting in Congress, the majority is tions of that result, it boldly infers the exis-
tence of a power that Congress has not yet
seen fit to provide, then brazenly declares that
21
“Doublethink means the power of it is “expressly” and “specifically” provided for
holding two contradictory beliefs in one’s mind in rules and statutes that are entirely silent on
simultaneously, and accepting both of them . . . . the subject. Such an opinion can only be the
The process has to be conscious, or it would not be product of a majority that is more confident in
carried out with sufficient precision, but it also has its result than in its reasoning, so I respectfully
to be unconscious, or it would bring with it a dissent.
feeling of falsity and hence of guilt.” G. Orwell,
Nineteen Eighty-Four 176 (1949). I.
22
In its first and least convincing holding, the
This is not the first time an en banc
majority accepts the argument that Crawford
majority of this court has reached such a
Fitting implicitly overrules duPont, so the ma-
perplexing result. See Kelly v. Lee’s Old
Fashioned Hamburgers, Inc., 908 F.2d 1218, jority agrees that it is therefore necessary to
1222 (5th Cir. 1990) (en banc) (Smith, J., find a rule or statute that expressly authorizes
dissenting) (“[T]he presence of the word ‘express’
should be enough of a clue that that word, rather
than the word ‘implied,’ is what in fact was meant
in the promulgation of [Rule 54(b)].”).
31
the taxation of ad litem fees as costs.23 Faced turn.
with that challenge, the majority holds that the
power to tax costs should be expressly enu- 1.
merated in rule 17(c), so the majority accord- It is not surprising that the meaning of the
ingly findsSSnotwithstanding the text of the term “express” has changed little since 1990,
ruleSSthat it is expressly enumerated.24 when this court decided Kelly and first begat
the concept of an impliedly-express statement.
As I will demonstrate, the majority’s rea- Then, as now, the term “express” meant “dir-
soning is severely flawed. It is no exaggera- ectly and distinctly stated or expressed rather
tion to observe that the majority (1) ignores than implied or left to inference.” WEBSTER’S
the plain meaning of some of the most elemen- THIRD NEW INT’L DICTIONARY 803 (Merriam-
tary words in the English language; (2) relies Webster 1986).25 It is, to put it mildly, “the
on a long-since repealed waiver of immunity; very opposite of ‘implied.’” Kelly, 908 F.2d at
(3) gives t he federal rules an impermissibly 1222 (Smith, J., dissenting).
broad mandate; and (4) then inexplicably
refuses to remand for application of its newly- Because rule 17(c) makes no mention of ei-
drafted rules. ther the taxation of costs or the payment of ad
litem fees, there is no sense in which it “ex-
A. pressly” provides that a guardian’s fees may be
The majority finds its “express authoriza- taxed as costs. If the power to tax such fees
tion” in two parts of rule 17(c): first, in the as costs exists somewhere within rule 17(c), it
language that provides for the appointment of can only be as an implicit component of the
a guardian ad litem; and second, in the lan- district court’s authority to appoint a guardian.
guage that allows the court to issue other or- As a result, the majority’s claim that rule 17(c)
ders for the protection of the minor. Cf. FED. contains “express statutory authorization” for
R. CIV. P. 17(c). I address those claims in the taxation of ad litem fees as costs is pa-
tently false.26
23
See Crawford Fitting, 482 U.S. at 445
25
(requiring “explicit statutory . . . authorization” for See also BLACK’S LAW DICTIONARY
the taxation of costs not enumerated in 28 U.S.C. 601 (7th ed. 1999) (“express, adj. Clearly and
§ 1920(6)). unmistakably communicated; directly stated.”);
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
24
See Maj. Op. at 18 (stating that “[i]t is 645 (Merriam-Webster 1998) (“1a: directly,
precisely due to such legitimate and practical firmly, and explicitly stated. b: EXACT, PRECISE.”)
reasons that district courts must also have the
26
inherent authority and discretion to tax guardian ad Crawford Fitting, 482 U.S. at 445,
litem fees as costs against nonprevailing parties,” speaks in terms of “explicit” authority. “Explicit”
and relying on a decision that describes rule 17(c) means “characterized by full clear expression :
as “silent on the subject”). being without vagueness or ambiguity : leaving
32
This flaw in the majority’s argument be- provisions dealing with both the appointment
comes all the more glaring when rule 17(c) is and the compensation of special masters con-
compared with rule 53, which governs the ap- stitute “explicit” authorization of the kind con-
pointment and compensation of masters. See templated in Crawford Fitting. Rule 17(c), in
FED. R. CIV. P. 53. The rules committee contrast, provides only for the appointment of
knows how to be explicit when it wishes to be, guardians ad litem. It says nothing whatso-
as rule 53 makes abundantly plain. ever about the means by which an appointed
guardian is to be compensated and, accord-
The newly revised rule 53(a)(3) provides ingly, does not contain the “explicit statutory
that “[i]n appointing a master, the court must authorization” the majority needs to reach its
consider the fairness of imposing the likely result.
expenses on the parties.” FED. R. CIV. P. 53-
(a)(3) (West 2004).27 Rule 53(h), by its own Ironically, this point is further illustrated by
title, expressly addresses the “compensation” the majority’s advocacy of one of its “alterna-
of masters. Subsection (h)(1) provides that tive” holdings. In arguing that Crawford Fit-
“[t]he court must fix the master’s compensa- ting is inapposite here, the majority claims that
tion before or after judgment on the basis and the federal rules are similar to state laws that
terms stated in the order of appointment.” provide for the compensation of guardians ad
FED. R. CIV. P. 53(h)(1). Subsection (h)(2) litem. See Maj. Op. at 28 & n.19. The critical
further specifies that the master’s compensa- difference, however, between federal law and
tion may be paid by either party or both, or the state laws relied on by the majority, is that
from a fund or subject matter of the action the latter all specifically and unambiguously
within the court’s control. FED. R. CIV. P. provide that guardian ad litem fees may be
53(h)(2). taxed as costs.
Thus, it is fair to say that rule 53’s express For example, the majority cites Alabama
Rule of Civil Procedure 17(d). Much like fed-
eral rule 17, Alabama’s rule 17(c) provides
nothing implied.” WEBSTER’S THIRD NEW INT ’L that a district court “shall appoint a guardian
DICTIONARY 801 (Merriam-Webster 1986). The ad litem (1) for a minor defendant, or (2) for
power identified by the district court no more fits an incompetent person not otherwise repre-
this definition than it does that of the word “ex-
sented in an action.” ALA. R. CIV. P. 17(c).
press.”
Unlike the federal rule, however, Alabama’s
27
Before its revision, rule 53(a)SSwhich rule also includes subpart (d), which provides:
was titled “Appointment and Compensation”SSpro-
vided that “[t]he compensation to be allowed to a In all cases in which a guardian ad litem is
master shall be fixed by the court, and shall be required, the court must ascertain a reason-
charged upon such of the parties . . . as the court able fee or compensation to be allowed and
may direct.” FED. R. CIV. P. 53(a) (West 2003). paid to such guardian ad litem for services
33
rendered in such cause, to be taxed as If the similarly worded state rules 17(c) al-
a part of the costs in such action, and ready “expressly” provided for that result,
which is to be paid when collected as these provisions would be wholly extraneous.
other costs in the action, to such The fact is that they are not. No matter how
guardian ad litem. much the majority thinks the practice in federal
courts should be the same as in these states,
ALA. R. CIV. P. 17(d) (cited in the Maj. Op. at rule 17(c) provides only for the appointment
28 n.19). of guardians ad litem, and there is no com-
mensurate federal rule or statute specifying the
Mississippi’s rules are similar. As with the manner in which their fees are to be paid. If
federal and Alabama rules, Mississippi has a that omission is bad policy, the power to craft
rule 17(c) that provides for the appointment of a solution lies solely in the hands of Congress
a guardian ad litem for unrepresented minors. and the drafters of the federal rules, not simply
MISS. R. CIV. P. 17(c). Just as in Alabama, but in the abusive “exercise [of] our authority as
unlike the federal rule, the appointment provi- an en banc Court.” Cf. Maj. Op. at 20.
sion is immediately followed by a section that
addresses the compensation of guardians: 2.
Having created for the district courts, out
In all cases in which a guardian ad litem is of whole cloth, the “inherent authority” to tax
required, the court must ascertain a reason- ad litem fees as costs, the next step in the ma-
able fee or compensation to be allowed and jority’s linguistic putsch is to find a way to
paid to such guardian ad litem for his ser- place that power into the text of the federal
vice rendered in such cause, to be taxed as rules. Cf. Maj. Op. at 17. The majority does
a part of the cost in such action. this by seizing on rule 17(c)’s provision that
the district courts shall “make such other order
MISS. R. CIV. P. 17(d).28 as it deems proper for the protection of the in-
fant or incompetent person.” Id. According
to the majority, “[t]his additional power is nec-
28
See also N.C. R. CIV. P. 17(b) essarily required so the district court can ef-
(providing that the court “may appoint some fectuate its appointment of a competent,
discreet person to act as guardian ad litem . . . and independent guardian ad litem.” Id.
fix and tax his fee as part of the costs”); TENN. R.
CIV. P. 17.03 (“The court may in its discretion
That argument is premised on a selective
allow the guardian ad litem a reasonable fee for
services, to be taxed as costs.”); TEX. R. CIV. P. quotation of rule 17(c). The full sentence re-
173 (“the court shall appoint a guardian ad litem lied on by the majority provides:
for such person and shall allow him a reasonable
fee for his services to be taxed as a part of the
costs.”). Further examples can be found in part III
of this dissent, addressing the majority’s second “alternative” to its main holding.
34
The court shall appoint a guardian ad litem on federal procedure succinctly explains that
for an infant or incompetent person not “the court may either appoint a guardian ad
otherwise represented in an action or shall litem or ‘make such other order as it deems
make such other order as it deems proper proper for the protection of the infant or
for the protection of the infant or incompe- incompetent person.’” 4 JAMES W. MOORE ET
tent person. AL., MOORE’S FEDERAL PRACTICE § 17.21-
[3][b] (Matthew Bender 3d ed.) (emphasis
FED. R. CIV. P. 17(c) (emphasis added). Con- added). Because it is used only as an alterna-
trary to the majority’s understanding, the plain tive to the appointment of a guardian ad litem,
meaning of this passage is that rule 17(c) af- the “other order” clause provides the majority
fords the district courts a choice between ap- no cover.
pointing an ad litem and issuing other orders
for the protection of the minor; it does not In short, then, the majority purports to rely
give the court the power to do both. on “express statutory authority” for the taxa-
tion of ad litem fees. Instead, it relies only on
Far from being a power given in furtherance an implied power that it creates and then
of the power to appoint an ad litem, the “other reads into a provision of the rules that can be
order” clause is a grant of discretion that invoked only when an ad litem is not ap-
enables the district court to protect the minor pointed.
without appointing a guardian. That reading
of rule 17(c) is not only plain on the face of B.
the text, but is confirmed by our decisions29 The majority’s first rationale is equally un-
and those of other circuits.30 A leading treatise convincing in its discussion of the govern-
ment’s claim to sovereign immunity. Even as-
suming, arguendo, that ad litem fees may be
29
See, e.g., Roberts v. Ohio Cas. Ins. Co. taxed as costs under some combination of
256 F.2d 35, 39 (5th Cir. 1958) (providing that a rules 17(c) and 54(d)(1), as the majority holds,
district court should usually appoint an ad litem, those costs can not automatically be taxed
but may instead “after weighing all the against the government as the losing party in
circumstances, issue such order as will protect the an action brought under the Federal Tort
minor in lieu of appointment of a guardian ad litem Claims Act (“FTCA”), 28 U.S.C. § 2671 et
. . . and may even decide that such appointment is seq. This is because the FTCASSas it is cur-
unnecessary”); Adelman ex rel. Adelman v.
Graves, 747 F.2d 986, 988-89 (5th Cir. 1984)
(same).
interests may be protected in an alternative
30
See, e.g., Gardner by Gardner v. manner.”); Genesco, Inc. v. Cone Mills Corp., 604
Parson, 874 F.2d 131, 140 (3d Cir. 1989) (stating F.2d 281, 285 (4th Cir. 1979) (Rule 17(c) requires
that “under Rule 17(c), a court may appoint a the court either to appoint a guardian “or take other
guardian, or it may decline to do so if the child’s equivalent protective action”).
35
rently draftedSSdoes not waive the govern- costs under rule 17(c), sovereign immunity has
ment’s immunity from the taxation of costs not been waived and the costs may not be
and attorney’s fees. taxed against the government. Thus, the dis-
trict court’s order taxing ad litem fees must be
Rather, costs and attorneys’ fees may only reversed.
be taxed against the government to the extent
that immunity is waived by the Equal Access To avoid this straightforward resultSSwhich
to Justice Act (“EAJA”), 28 U.S.C. § 2412. is, evidently, so unpalatable to the majority
See Sanchez v. Rowe, 870 F.2d 291, 296 (5th that it will go to extraordinary lengths to avoid
Cir. 1989). The EAJA provides, in relevant itSSthe majority takes two approaches. In the
part: body of the opinion, it assesses sovereign
immunity using the correct statute, but holds
Except as otherwise specifically provided that “the inherent powers and responsibility
by statute, a judgment for costs, as enumer- under rule 17(c) to make such orders as the
ated in section 1920 of this title, but not court deems proper also constitute the alterna-
including the fees and expenses of attor- tive express statutory authorization to tax
neys, may be awarded to the prevailing par- guardian ad litem fees as costs to meet the
ty in any civil action brought by or against requirements of § 2412(a)(1) and defeat any
the United States. associated claim of sovereign immunity by the
nonprevailing government in an FTCA case.”
§ 2412(a)(1). That language unambiguously Maj. Op. at 19, 25. In contrast, the majority’s
provides that costs may be taxed against the footnotes take a completely different approach
United States only if they are among those and argue that immunity is waived by the
enumerated in 28 U.S.C. § 1920. Although terms of the FTCA itselfSSor rather, by the
§ 1920 lists a number of items of taxable costs, terms of the FTCA as it stood more than a half
it says nothing about guardian ad litem fees.31 century ago. See id. at 19 n.11 & 25-26 n.15
As a result, even if the majority is correct in (relying on language in 28 U.S.C. § 931(a)
holding that ad litem fees may be taxed as that was repealed in 1948).
There are several serious flaws in the major-
31 ity’s analysis. First, the majority mistakenly
I recognize that one of the majority’s
reads the opening phrase of § 2412(a)(1) as
“alternative” holdings is that § 1920 enumerates
providing that there can be specific statutory
guardian ad litem fees as a taxable cost. I refute
that claim in part II. For present purposes, how- exceptions to the definition of costs as used in
ever, my discussion is focused only on the majori- the EAJA. Properly understood, that line pro-
ty’s first rationale, in which it posits that rule 17(c) vides something markedly different: that there
specifically provides both that ad litem fees may be are cases in which the government does not
taxed as costs, and that they may be taxed against waive its immunity from the taxation of costs.
the government under § 2412(a)(1). Second, the court further mangles the English
36
language by finding that rule 17(c) contains an not specified in § 1920. To the contrary, the
“express” waiver of immunity, despite recog- statute’s definition of costs as being those
nizing that it does not “specifically state” any- items that are enumerated in § 1920, but not
thing to that effect. Compare Maj. Op. at 19; including attorney’s fees, is absolute.
with id. at 18. Third, the court gives the fed-
eral rules an impermissibly broad mandate, and Instead, the phrase “Except as otherwise
then, fourth, ignores words of limitation that specifically provided by statute” only modifies
provide for exceptions to § 2412(a)(1) only as the statement that “a judgment for costs . . .
specified by “statute.” Finally, in what can may be awarded to the prevailing party in any
only be seen as a concession that its analysis of civil action brought by or against the United
§ 2412(a)(1) fails to pass muster, the majority States.” It provides that there may be instanc-
simply brushes that statute aside in preference es in which costs are not recoverable against
for language that was removed from the FTCA the United States, even though they are among
in 1948 and has since been replaced by other those enumerated in § 1920 and are not attor-
statutes. neys fees.32 The exception refers only to the
subject and predicate of the sentence: the com-
1. bined statement that a judgment for costs may
To begin with, the entire premise of the ma- be awarded against the United States. It does
jority’s discussion of sovereign immunity is not create an exception to the definition of
utterly flawed, because it is directed at proving costs as items that are “enumerated in § 1920
that ad litem fees fit a non-existent exception of this title, but not including the fees and
to the EAJA. This is a minor point, however, expenses of attorneys.”
so I will not belabor it.
So, the majority’s claim that it has identified
The court claims to find, in rule 17(c), a a specific, statutorily grounded exception to §
specific statutory exception to § 2412(a)(1)’s 2412(a)(1) is immaterial: any such exception
limited waiver of immunity. Even if the court can serve only to prevent the taxation of costs;
could show that its exception is both specific it can not serve to permit the taxation of things
and located in a statuteSSsomething it cannot
do, as explained in sub-parts 2 through 4, in-
fraSSit would not support the conclusion 32
See also G. Van Ingen, Allowance of
reached by the majority.
Fees for Guardian ad Litem Appointed for Infant
Defendant, as Costs, 30 A.L.R.2d 1148 § 1
The majority flatly misreads § 2412(a)(1)’s (Whitney 2004) (“[T]he governing statutes or rules
opening clause: “Except as otherwise specifi- of court generally allow costs in favor of the
cally provided by statute.” Properly under- prevailing party to the litigation. However, the
stood, those words do not mean that there are statutes sometimes recognize the propriety of
instances in which costs may be awarded denying costs in favor of the prevailing party,
against the United States even though they are under the proper circumstances.”)
37
that are not costs. “specific” in its interpretation of § 2412(a)(1).
Even absent the EAJA’s express requirement
2. that exceptions to its terms be “specific,” the
The court’s second mistakeSSidentifying a same result is dictated by “the traditional prin-
putative exception to § 2412(a)(1) and calling ciple that the Government’s consent to be sued
it “specific”SSis far worse, and it is one that must be construed strictly in favor of the
should by now seem familiar. Even assuming, sovereign, and not enlarge[d] . . . beyond what
arguendo, that the EAJA allows for exceptions the language requires.” United States v. Nor-
to the definition of the word costs as used in § dic Village, Inc., 503 U.S. 30, 34 (1992) (in-
2412(a)(1), rule 17(c) does not constitute a ternal quotations omitted). “Waivers of the
“specific” exception to the government’s Government’s sovereign immunity, to be ef-
limited waiver of immunity. fective, must be unequivocally expressed.” Id.
(quotations omitted).34
The term “specifically” means “with exact-
ness and precision : in a definite manner.” No matter how much the majority tries to
WEBSTER’S THIRD NEW INT'L DICTIONARY contort the meaning of rule 17(c), there is no
2187 (Merriam-Webster 1986). Again, be- sense in which it either “specifically,” “explic-
cause rule 17(c) says nothing at all about itly,” “expressly,” “clearly,” or “unequivocally”
guardian ad litem fees, it does not “specifically waives sovereign immunity from the taxation
provide” for a waiver of the government’s of ad litem fees as court costs. The majority
immunity from their taxation. takes the opposite to our ordinary approach
and finds a waiver of immunity in a provision
Even if the “other order” clause in rule of the federal rules that is completely silent on
17(c) is held out as the portion of the rule that the subject.
provides for a waiver of immunity,33 it fails to
do so specifically. That clause only says gen- This impliedly-express waiver of sovereign
erally that the court may make other orders; it immunity flunks even the most lenient under-
says nothing specific about what those orders standing of the clear statement rule. Its pres-
may be. It therefore provides no exception to ence in an en banc opinion can serve no pur-
§ 2412(a)(1)’s general rule that costs may not pose but to throw our entire sovereign immu-
be taxed against the government unless they nity jurisprudence into chaos.
are enumerated in § 1920.
3.
This is not merely a question of the major-
ity’s ignoring the plain meaning of the word
34
See also United States v. Williams,
514 U.S. 527, 531 (1995) (“[W]e may not enlarge
33
An unsupportable claim, for the reasons the waiver beyond the purview of the statutory
I discuss in part I.A.2, supra. language.”)
38
The next flaw in the majority’s analysis of between the federal rules and statutes is that
sovereign immunity is its contention that rule the former are restricted to certain limited top-
17(c) is a statute. See Maj. Op. at 19. The ics. The Rules Enabling Act delegates author-
majority recognizes, of course, that even a ity to the Supreme Court only to “prescribe
specific waiver of immunity is ineffective as an general rules of practice and procedure.” 28
exception to the EAJA unless it is “provided U.S.C. § 2072(a). Moreover, it specifically
by statute.” 28 U.S.C. § 2412(a)(1). The provides that “[s]uch rules shall not abridge,
majoritySSciting only a single district court as enlarge or modify any substantive right.” 28
authoritySSfinds that rule 17(c) fits this de- U.S.C. § 2072(b).
scription.35
The Rules Committee can no more validly
The federal rules are, of course, part of fed- waive the United States’ sovereign immunity
eral law, and we often give them the same ef- than this court can. It lacks the authority to
fect as statutes.36 The Rules Enabling Act speak on behalf of the United States in its ca-
even has an abrogation clause that provides pacity as a sovereign party to a lawsuit. If rule
“[a]ll laws in conflict with [the] rules shall be 17(c) said what the majority thinks it says, it
of no further force or effect after such rules would exist in violation of the limited grant of
have taken effect.” 28 U.S.C. § 2072(b). So, authority under which it was enacted.
to the extent the majority argues that the fed-
eral rules have “the imprimatur of Congress” The Supreme Court addressed this issue in
such that they are considered laws, I fully United States v. Sherwood, 312 U.S. 584
agree. See Maj. Op. at 19. (1941), and held:
Nevertheless, one of the critical differences [N]othing in the new rules of civil practice
. . . authorizes the maintenance of any suit
against the United States to which it has
35
See Maj. Op. at 18 (citing ICG not otherwise consented. An authority
Communications, Inc. v. Allegiance Telecom, 211 conferred upon a court to make rules of
F.R.D. 610, 613 (N.D. Cal. 2002). The ICG procedure for the exercise of its jurisdiction
Communications case does not even stand for the is not an authority to enlarge that jurisdic-
proposition attributed to it by the majority: that the tion and the Act of June 19, 1934 . . . au-
term “statute” is synonymous with, or at least thorizing this Court to prescribe rules of
includes, the federal rules.
procedure in civil actions gave it no author-
36
See, e.g., United States v. Wilson, 306 ity to modify, abridge or enlarge the sub-
F.3d 231, 236 (5th Cir. 2002) (finding that stantive rights of litigants or to enlarge or
“Congress retains an integral, albeit passive, role in diminish the jurisdiction of federal courts.
implementing any rules drafted by the Court,” and
that the federal rules can have the same operative Id. at 589-90.
effect as statutes).
39
The majority responds with a truism, ob- pendent meanings, and as a result I cannot
serving that the federal rules apply to FTCA read Congress’s choice of the the word “stat-
actions. See Maj. Op. at 19 n.11. Of course ute” in § 2412(a)(1) as including both tradi-
they doSSneither I nor the government con- tional statutes and the federal rules. Rather,
tends otherwise. Indeed, if the federal rules Congress’s use of the word “statute” signals a
did not apply to FTCA actions, our problems conscious decision to limit the sphere of pos-
would be greater still, because the district sible exceptions to the EAJA to laws drafted
court would have lacked authority even to ap- by Congress and signed by the President.
point the guardian under rule 17(c), let alone
to provide for his compensation. Either way, Even rule 54(d)(1)SSan interpretation of
that contention is entirely beside the point, be- which is ostensibly at the heart of the majori-
cause the applicable rules not only fail to say ty’s opinionSSdistinguishes between the two
that they waive the government’s immunity, terms: “Except when express provision there-
but they lack the capacity to do so in any for is made either in a statute of the United
event. States or in these rules . . . .” FED. R. CIV. P.
54(d)(1). That choice of words is almost iden-
4. tical to the first line of § 2412(a)(1), but for
There is still another problem with the ma- one omission: The EAJA permits exceptions
jority’s use of a federal rule to effect a waiver only “as otherwise specifically provided by
of immunity. Again, conceding that the rules statute.” 28 U.S.C. § 2412(a)(1).38
apply to FTCA cases, and assuming for the
moment that the rules are capable of waiving
the government’s immunity, there remains the ing that “[a]lthough Congress has authorized the
problem of whether the rules fit the majority’s Court to exercise some legislative authority to
identified exception to § 2412(a)(1). The ma- regulate the courts . . . [it] may at any time amend
jority ignores the fact that Congress chose only or abridge by statute the Federal Rules of Civil
to use the word “statute,” and not “rule,” Procedure . . . or other federal procedural rules
when it provided that there may be exceptions promulgated under the Rules Enabling Act”) (in-
to the EAJA. Federal law is rife with instances ternal citations omitted).
in which the two terms are held out as inde- 38
Rule 11 is similar to rule 54 in that it
pendent legal concepts.37 They have inde
also distinguishes between the terms “rule” and
“statute.” It provides that pleadings need not be
verified by affidavit “[e]xcept when otherwise
37
See, e.g., Crawford-El v. Britton, 523 specifically provided by rule or statute.” FED. R.
U.S. 574, 594 (1998) (stating that “[n]either the CIV. P. 11(a). Similarly, the Federal Rules of
text of § 1983 or any other federal statute, nor the Bankruptcy Procedure provide that “[t]he court
Federal Rules of Civil Procedure, provide . . .”); may allow costs to the prevailing party except
Jackson v. Stinnett, 102 F.3d 132, 134 (5th Cir. when a statute of the United States or these rules
1996) (discussing the Rules Enabling Act and find- otherwise provides.” FED. R. BANKR. P. 7054(b).
40
If Congress had wished, it could have pro- That is indeed a tough claim to make, given
vided that exceptions to the EAJA may be that the FTCA’s waiver of immunity speaks
“specifically provided by statute or rule,” just only in terms of “tort claims,”40 and there is a
as the Rules Committee provided when draft- separate statute that has no purpose other than
ing rule 54. It did not, however, and as a re- to specify the terms on which costs may be
sult this court cannot hold out rule 17(c) as the taxed against the government. Compare 28
source for an exception to the EAJA. U.S.C. § 2674, with § 2412(a)(1). “It is an
elementary tenet of statutory construction that
For those reasons, rule 17(c) does not ‘[w]here there is no clear intention otherwise,
waive the government’s immunity from the a specific statute will not be controlled or
taxation of costs that are not enumerated in 28 nullified by a general one.’” Guidry v. Sheet
U.S.C. § 1920. Not only does rule 17(c) fail Metal Workers Nat’l Pension Fund, 493 U.S.
“specifically [to] provide” an exception to 365, 375 (1990) (quoting Morton v. Mancari,
§ 2412(a)(1), it is also not a statute, and it was 417 U.S. 535, 550-51 (1974)). Because §
promulgated under a grant of authority that 2412 is by far the more specific statute on the
does not include the power to waive the gov- topic of the government’s liability for costs, it
ernment’s substantive right to be free from controls over any inferences that may be
suit. drawn from § 2674’s broad statement to the
effect that the government is liable for “tort
5.
Finally, there is the majority’s claim that the
FTCA, rather than § 2412(a)(1), is the relevant exception to § 2412(a)(1)’s limited waiver of im-
statute for purposes of assessing sovereign munity; instead, they serve only further to muddy
immunity. See Maj. Op. at 19 n.11, 25 n.15.39 the waters. If the footnotes are correct, the discus-
sion in the body of the majority opinion is wholly
extraneous. At best, therefore, those footnotes
The Federal Rules of Criminal Procedure also constitute but another “alternative” holding that
distinguish between themselves and statutes, can have no purpose except to provide false com-
providing that “[e]xcept as otherwise provided by fort to a majority that is already well aware of the
a statute or these rules, the court must not permit dearth of support for its position.
the taking of photographs in the courtroom during
40
judicial proceedings.” FED. R. CRIM. P. 53. No one disputes that the government
was not immune from the Gaddises’ underlying tort
39
That is a strange position for the claim, and even the majority cannot bring itself to
majority to take, because the portions of the text to assert that the guardian’s request for fees
which those footnotes correspond discuss sovereign constitutes a “tort claim” against the United States.
immunity in the context of the correct statute, Instead, the issue is only whether the waiver of
§ 2412(a)(1), not the FTCA. See Maj. Op. at 19, immunity with respect to the Gaddises’ claim also
25. The majority’s footnotes in no way clarify the encompasses litigation costs incurred in the course
manner in which rule 17(c) provides a specific of trial.
41
claims” on the same terms as other parties. At the time a statute is enacted, it may have
a range of plausible meanings. Over time,
To refine its view of the FTCA into a state- however, subsequent acts can shape or fo-
ment that might reasonably control the specific cus those meanings. The “classic judicial
terms of § 2412(a)(1), the majority points to task of reconciling many laws enacted over
language that was removed from the FTCA in time, and getting them to ‘make sense’ in
1948. See Maj. Op. at 25-26 n.15. Relying on combination, necessarily assumes that the
United States v. Yellow Cab, 340 U.S. 543, implications of a statute may be altered by
547 n.4 (1951), the majority then argues that the implications of a later statute.” United
the current version of the FTCA should be States v. Fausto, 484 U.S. [439, 453
read as continuing to carry out the policies of (1988)]. This is particularly so where the
the repealed statute 28 U.S.C. § 931(a) (1946) scope of the earlier statute is broad but the
(quoted in Yellow Cab, 340 U.S. at 547 n.4.). subsequent statutes more specifically ad-
dress the topic at hand. As we recognized
The majority reads far too much into Yel- recently in United States v. Estate of Ro-
low Cab, which specified that it was reading mani, [523 U.S. 517, 530-31 (1998),] “a
the old and new statutes as being consistent specific policy embodied in a later federal
with one another because the provisions mate- statute should control our construction of
rial to its dispute had been largely reenacted in the [earlier] statute, even though it ha[s]
§ 2674, with only minor changes in “phraseol- not been expressly amended.”
ogy.” Id. In contrast, the provisions relevant
to the present dispute were not reenacted in Food & Drug Admin. v. Brown & Williamson
the FTCA in any form. Yellow Cab therefore Tobacco Corp., 529 U.S. 120, 143 (2000).
provides no basis for the majority’s conclusion
that we are bound by repealed language that Even if Yellow Cab requires us to assume
supposedly undergirds § 2674, rather than the that the post-amendment FTCA originally ap-
plain (and valid) language of § 2412(a)(1). plied to the taxation of costs, we would still be
required to challenge that assumption when it
Even if Yellow Cab were not distinguish- became inconsistent with intervening statutes.
able on that basis, it still would not provide Because Congress drafted a new statute that
support for the majority’s analysis. Yellow directly addresses the subject of costs, we
Cab was decided a mere three years after the cannot just ignore it in preference for language
FTCA’s revision, and the Court needed only that was repealed in 1948.41
to reconcile the pre- and post-amendment
versions of the same statute. Half a century
later, however, we are required also to con- 41
It is also beyond cavil that the EAJA
sider the significance of the statutes Congress generally applies to tort suits against the
has enacted in the intervening years: government. One subsection of the act, §
2412(d)(1)(A), specifically exempts tort cases from
42
The majority cannot so simply escape the
The irony in the majority’s position is that limitations imposed on the waiver of sovereign
that position is likely to end up being even immunity. Because guardian ad litem fees are
more favorable to the government than the one not listed in § 1920, they do not fit within §
I am advocating. Applying the court’s holding 2412(a)(1)’s requirements. We should reverse
to a far more common problemSSa request for on this basis as well.
the payment of attorney’s feesSSit must also
be the case that § 2674 of the FTCA continues C.
to embody the relevant provisions of the old Finally, even if the majority correctly holds
statute, § 931(a). That statute flatly prohibited that ad litem fees may be taxed against the
courts from awarding attorney’s fees against government under rule 17(c), it errs in merely
the government in a tort case. See Yellow affirming rather than remanding. A remand is
Cab, 340 U.S. at 547 n.4. The EAJA purports appropriate, because the district court used
to soften that restriction by allowing an award rule 54(d)(1), not rule 17(c), as the basis for
of attorney’s fees in some tort cases under its order taxing ad litem costs.
§ 2412(b), see, e.g., Stive v. United States,
366 F.3d 520, 521 (7th Cir. 2004), while still The majority’s own opinion provides dis-
refusing to require that they be imposed, even trict courts the authority to determine
in cases where the government takes an unjus-
tified position, see § 2412(d)(1)(A). [w]hether the compensation payable to the
guardian ad litem will be treated (1) as a
Under the majority’s holding, courts will be court cost to be taxable against the nonpre-
required to look to the repealed language of § vailing party or (2) as an expense to be pay-
931(a), and not to § 2412, to determine able out of any funds recovered by or pay-
whether attorney’s fees may be allowed able to the minor or incompetent person on
against the government in an FTCA case. whose behalf the guardian ad litem was
Because § 931(a) prohibits those awards in all appointed.
tort cases, the majority’s holding ultimately
will inure to the great detriment of plaintiffs Maj. Op. at 20. In so doing, the opinion arms
seeking redress for government wrongs. district courts with a level of discretion in ap-
plying rule 17(c) that is more akin to that
found in rule 53(h)(2) than in rule 54(d)(1).
The court need not tax the full amount of the
the provision that mandates an award of attorney’s costs against the losing party, as rule 54(d)
fees against the government when it takes an would require, but instead may allocate the
unreasonable position at trial. No such exception burden among the parties in the manner it finds
would be necessary if the EAJA did not otherwise most equitable.
apply to tort claims brought against the
government. Nevertheless, by affirming instead of re-
43
manding, the majority denies this discretion to motivation of this rule is fairness: to prevent
the very court for which it was created: the injustice to a party who had no reason to ex-
district court in the instant case. There is no pect a changed rule at the time of trial.” Id.
doubt that the district court relied exclusively
on rule 54(d) in crafting its order taxing costs Even accepting the majority’s eminently
against the government: This court’s decisions flawed opinion that ad litem fees may be taxed
unambiguously have held that the power to tax as costs under rule 17(c), the appropriate rem-
ad litem fees derived from rule 54(d);42 the ad edy is to remand so that the district court can
litem moved to have his fees taxed against the apply its newly-created powers under rule
government as costs pursuant to rule 54(d); 17(c) to determine the most equitable means
and the district court approved the order in of allocating the ad litem’s fees among the
reliance on our duPont line of cases. parties as it sees fit.
The district court had no idea that it was II.
empowered to distribute the burden of the ad The majority also affirms on the “alterna-
litem’s fees on any party other than the gov- tive” ground that a court appointed guardian
ernment. Nor could it have: Today’s decision ad litem is one of the items of taxable costs
is the first to provide that the power to tax enumerated by Congress in 28 U.S.C. § 1920.
costs stems from rule 17(c), not rule 54(d). Specifically, the majority finds that guardians
Had the district court known of this power, it ad litem are court appointed experts under
may well have found it more equitable to re- § 1920(6).
quire the minor, for whom the ad litem was
appointed, to apply some portion of his It is notable that the majority repeatedly
$4,083,103.66 recovery toward the ad litem’s defends its view as “reasonable,” but never as
$46,299 fee. correct. See Maj. Op. at 20, 23, 24. That re-
luctance is not particularly surprising: Even
“When law changes in unanticipated ways the plaintiffs concede that the majority’s read-
during an appeal . . . this court will generally ing is incorrect, and they disavow any reliance
remand for a new trial to give parties the ben- on it. That concession ordinarily would keep
efit of the new law and the opportunity to pre- this court from even entertaining the argument,
sent evidence relevant to that new standard.” because a “party’s concession of an issue
Deffenbaugh-Williams v. Wal-Mart Stores, means the issue is waived and may not be
Inc., 188 F.3d 278, 282 (5th Cir. 1999). “The revived.” Smith v. United States, 328 F.3d
760, 770 (5th Cir. 2003).
42
See, e.g., duPont, 771 F.2d at 882 But even if one joins the majority in ignor-
(“As an officer of the court, the expenses of a ing the appellees’ concession, the majority’s
guardian ad litem are properly taxable as costs first “alternative” holding is manifestly errone-
pursuant to Fed. R. Civ. P. 54(d).”). ous, both as an interpretation of the statute
44
and as an application of that statute to the the Federal Rules of Evidence.”43 H.R. Rep.
facts of this case. The majority’s strained No. 95-1687, 95th Cong., 2d Sess. 13, re-
reading of the text also violates the maxim that printed in 1978 U.S.C.C.A.N. 4652, 4664. As
we construe waivers of sovereign immunity a result, the plain meaning of “court appointed
narrowly and in favor of the sovereign. experts,” as used in § 1920(6), is a specific
reference to experts appointed under rule 706
A. and does not include guardians ad litem ap-
This court interprets statutes according to pointed under rule 17(c). Cf. FED. R. EVID.
their plain meanings. Conn. Bank of Com- 706; FED. R. CIV. P. 17(c).
merce v. Republic of Congo, 309 F.3d 240,
260 (5th Cir. 2002). “In determining a stat- In contrast, the court posits that guardians
ute’s plain meaning, we assume that, absent ad litem fit the ordinary, contemporary, and
any contrary definition, ‘Congress intends the common meaning of the term “court appointed
words in its enactments to carry their ordinary, expert,” just because they “liaise with the court
contemporary, common meaning.’” In re and are charged with the important duty of
Greenway, 71 F.3d 1177, 1179 (5th Cir. 1996) providing their insight as to how the judicial
(quoting Pioneer Inv. Serv. v. Brunswick process is or is not comporting with the best
Assoc., 507 U.S. 380, 388 (1993)) (internal interests of the minor.” Maj. Op. at 24.
quotation marks omitted). That claim is unconvincing, for the same vague
description could be applied to a number of
The plain meaning of the phrase “court ap- parties that § 1920 otherwise references by
pointed experts” in § 1920(6) is that it is a ref- name.
erence to experts appointed under Federal
Rule of Evidence 706. The rule likewise is For example, interpreters are selected and
titled “Court Appointed Experts,” and courts appointed by the “presiding judicial officer” at
consistently refer to individuals appointed un- trial, and there is no question but that they ap-
der that rule by the same name. In addition to ply their skills toward a discrete task that is
this common usage, the term “court appointed
expert” is in fact defined as synonymous with 43
“impartial expert. An expert who is appointed The majority dismisses that statement
by the court to present an unbiased opinion in a footnote, arguing that the inclusion of “court
appointed experts” in § 1920 was such an after-
. . . . FED. R. EVID. 706.” BLACK’S LAW
thought that any explanation for its inclusion is
DICTIONARY 600 (7th ed. 1999).
presumptively unreliable. See Maj. Op. at 24-25
n.13. That observation leads, however, to the in-
This view is reinforced by legislative his- verse of the majority’s conclusion. If indeed Con-
tory. The House Committee report provides gress paid little heed to its decision to include the
that § 1920(6) is an “express reference to the fees of court appointed experts in § 1920, it is far
taxation of the compensation of a court ap- more likely that the term is used in a familiar, as
pointed expert, as permitted by Rule 706 of opposed to novel, way.
45
essential to fair judicial administration. Cf. 28 tion, 6 GEO. MASON L. REV. 255, 275 (1998).
U.S.C. § 1827. The same is true of court re- No matter how valuable are the skills pos-
porters. Federal law provides that “[e]ach dis- sessed by an ad litem, the legal system does
trict court of the United States . . . shall ap- not generally refer to them as “experts.”
point one or more court reporters,” 28 U.S.C.
§ 753, and theirs is certainly a unique skill that I cannot presume that the lone exception to
is applied to a discrete problem in trial man- this practice is Congress’s choice of the phrase
agement. “court appointed experts” in § 1920(6), a
phrase that has a far more naturalSSand lim-
Yet, despite the “expert” status of reporters itedSSconnotation as a reference to rule 706
and interpreters under the majority’s new rule, experts.45 However valuable or important the
their fees receive individualized mention in duties of an ad litem are, they do not automat-
§ 1920(2) and (6). The majority’s reasoning ically make someone appointed to perform that
therefore ignores the maxim that courts should function a “court appointed expert.”
avoid an interpretation of a statute that “ren-
ders some words altogether redundant.” Gus- The majority’s interpretation also violates
tafson, 513 U.S. at 574.44 the interpretive canon that “where general
words follow specific words in a statutory
Accordingly, it takes something more than enumeration, the general words are construed
a court appointment and responsibility over an to embrace only objects similar in nature to
“important duty” to qualify as a court appoint- those objects enumerated by the preceding
ed expert within the meaning of § 1920(6). In specific words.” Wash. State Dep't of Social
this regard, it is telling that an ad litem need & Health Servs v. Guardianship Estate of Kef-
not even be an expert to qualify for appoint- feler, 537 U.S. 371, 384 (2003). Section 1920
ment under rule 17(c). is quite specific in providing for the taxation of
costs incurred by a particular individual: The
“Qualification cannot occur in guardian ad clerk, marshals, court reporters and interpret-
litem situations because no recognized area of ers are all specifically provided for. Moreover,
general expertise with regard to ‘custody’ or these descriptions refer to the officials’ job
‘child placement’ exists.” R. Lidman & B. titles, not merely to the attributes they bring to
Hollingsworth, The Guardian ad Litem in that positionSSthe list is, in other words,
Child Custody Cases: the Contours of Our taxonomical, not descriptive.
Judicial System Stretched Beyond Recogni-
45
At oral argument, the ad litem disclosed
44
The majority also sweeps into its fold that this was his first time serving in that capacity.
masters appointed under rule 53, even though the That he did so competently only underscores the
rules independently provide a means for their com- fact that an ad litem can be a relative novice, and
pensation. See FED. R. CIV. P. 53(h). yet still satisfy all the requirements of the job.
46
Against that backdrop, the ordinary pre- expressed his willingness to serve as ad
sumption is that the phrase “court appointed litem pending approval by the Court.
expert” is a similarly specific reference to the
title of a court official, not a broad description The possession of a general familiarity with a
of the skill set possessed by an individual who subject, and a willingness to serve, do not
serves the court. It means the very persons make someone an expert in that field. Because
who ordinarily would be referred to as “court this particular ad litem possessed no expertise
appointed experts,” not those who were ap- and was not appointed to be an expert, there is
pointed by the court and generally could be no basis for the majority’s conclusion that his
described as possessing some measure of ex- fees may be taxed against an adverse party on
pertise. Because rule 706 experts ordinarily the theory that they are costs incurred by an
are referred to as “court appointed experts,” “expert.”
they fit within the statute; guardians ad litem
appointed under rule 17(c) do not. Cf. FED. R. C.
EVID. 706; FED. R. CIV. P. 17(c). The majority asserts that this “alternative”
holding exists free and clear of any sovereign
B. immunity concerns, because a finding that
Even if the majority correctly holds that guardians ad litem are enumerated within
guardians ad litem could be “experts” within § 1920 is tantamount to a finding that the
the meaning of § 1920(6), it would be absurd government has waived its immunity in
to apply that holding to the present case. I do § 2412(a)(1) . See Maj. Op. at 25. That is
not mean to denigrate the services of the ad only half right. The court is correct to note
litem in this case, who, by all accounts, per- that the EAJA waives immunity for those
formed his job competently and diligently. items that are “enumerated in section 1920.”
Nevertheless, the circumstances of his appoint- 28 U.S.C. § 2412(a)(1). But, what the major-
ment as an ad litem fall far short of anything ity fails to acknowledge is that its opinion is as
resembling the qualification and appointment much an interpretation of § 2412(a)(1) as it is
of an expert. of § 1920. This is because the majority must
identify the meaning of the words “as enumer-
The Gaddises originally moved for the ap- ated in section 1920” before finding that the
pointment of an ad litem and recommended government has waived its immunity for the
that this person be designated to serve in that taxation of costs.
capacity. Their summation of his qualifica-
tions reads, in its entirety: As a result, the majority’s view that it can
adopt any possible interpretation of § 1920, no
Plaintiffs would respectfully request that matter how strained or tenuous, violates the
attorney George Bean be appointed as Ad maxim that waivers of immunity are not to be
Litem for the Minor. Mr Bean is familiar enlarged “beyond what the language requires.”
with the general facts of the case and has Nordic Village, 503 U.S. at 34; Williams, 514
47
U.S. at 531. Even if it is possible to interpret benefit of having the issued briefed and orally
§ 1920 in the manner adopted by the major- argued. The majority’s approach serves no
itySSbecause nothing in the statute conclusive- purpose but to absol ve the en banc court of
ly forecloses its viewSSthat is not enough. the responsibility for reaching the relatively
There is nothing in either § 1920 or § 2412- obvious, if unpalatable, conclusion that the
(a)(1) that even comes close to compelling the government’s position is the correct one.
majority’s view that the government has
waived its immunity from the taxation of This final “alternative” holding rests on the
guardian ad litem fees as costs. proposition that Crawford Fitting is inapposite
to the question whether guardian ad litem fees
III. may be taxed as costs. To reach its conclu-
I now come to the majority’s third, and sion, the majority first observes that we have
final, explanation for its self-described “fair favorably cited the duPont line of cases for
and proper” result. Maj. Op. at 29. In this several years after Crawford Fitting and
next “alternative” version of its holding, the thereby have upheld the right of district courts
majority throws all prior arguments out the to tax ad litem fees as costs under rule 54-
window, and holds that the case is much ado (d)(1). See Maj. Op. at 26 & n.16.
about nothing. Because we have previously
reached the same result without considering Further, the majority reasons, Crawford
the arguments presented by the government in Fitting has no relevance to the present dispute,
this appeal, we have obviously rejected them, because “[n]either the term ‘guardian ad litem’
says the majority, so we shouldn’t waste time nor the phrase ‘guardian ad litem fees’ appears
today considering their merits.46 anywhere in the Supreme Court’s decision in
Crawford Fitting.” Id. at 28. Lastly, the
The logic of that approach is overwhelm- majority reasons, there are a variety of states
ing. Surely it is not better that we leave the in which “state courts applying their respective
tough questions to a three-judge panel that did state statutes” have found that ad litem fees
not consider the question, than to the collec- are taxable items of cost; as a result, federal
tive wisdom of sixteen judges who have the statutes must provide for the same result. Id.
The only inference to be drawn from the
46 fact that our recent cases have taxed ad litem
See Dickerson v. United States, 280
fees without mentioning Crawford Fitting, is
F.3d 470, 478 (5th Cir. 2002); Lebron v. United
States, 279 F.3d 321, 332 (5th Cir. 2002); Gibbs that the parties in those cases did not make the
v. Gibbs, 210 F.3d 491, 506 (5th Cir. 2000). same argument that the government has put
Those cases rely entirely on duPont, and they forward here. Because Dickerson, 280 F.3d at
neither discuss the potential impact of Crawford 478; Lebron, 279 F.3d at 332; and Gibbs, 210
Fitting on duPont nor address the issues raised in F.3d at 506, make no mention of Crawford
today’s opinion. Fitting, they do not stand for the proposition
48
that the government’s arguments based upon Id. That the Court reached this result in the
that case are without merit. To the contrary, context of finding that expert witness fees may
the only significance of those cases is that they not be taxed above the amount specified in 28
bound the original panel in this case to a result U.S.C. §§ 1920 and 1821(b) is of no moment.
that could not be squared with Crawford Fit- If the Court instructs lower courts that they
ting. In other words, we took this case en may tax only the six items listed in § 1920, and
banc to consider whether those decisions are in then holds that they may not tax a seventh
error; it is an insufficient answer merely to item, we are bound to apply that decision to
observe that those panels reached a decision. say “nor this eighth, nor this ninth, nor this
tenth item either.”
Likewise, there is no significance to the fact
that Crawford Fitting fails to mention the term Outside the guardian ad litem context, we
“guardian ad litem.” This is because the case have applied Crawford Fitting to hold that a
creates a rule of exclusion, not inclusion. In federal district court may not tax, as costs,
Crawford Fitting, the Court specifically re- expenses incurred in preparing videotaped de-
jected the view that Ҥ 1920 does not preclude positions, because that item is not found in
taxation of costs above and beyond the items § 1920’s list. Mota v. Univ. of Tex. Houston
listed,” as well as the view that “Rule 54(d) is Health Science Ctr., 261 F.3d 512, 529-30
a separate source of power to tax as costs (5th Cir. 2001). Likewise, video technician
expenses not enumerated in § 1920.” Craw- fees are not taxable under § 1920, nor are the
ford Fitting, 482 U.S. at 441. production of ‘blow-ups’ of exhibits. Coats v.
Penrod Drilling Corp., 5 F.3d 877, 891 (5th
Instead it held, in no uncertain terms, that Cir. 1993). In the closest analogy to the
costs are taxable under rule 54(d) only if they present case, we held that a mediator’s fees are
are among those items that Congress specifi- not covered by § 1920 either and, as a result,
cally enumerated in 28 U.S.C. § 1920. Indeed, may not be taxed as costs in the wake of
“§ 1920 defines the term ‘costs’ as used in rule Crawford Fitting. Mota, 261 F.3d at 530.48
54(d),” and “no reasonable reading of these
provisions together can lead to [the] conclu- The majority also errs in claiming that its
sion” that items of cost may be taxed even conclusion is reinforced by the practice in state
though they are not enumerated in § 1920.47 courts. Its own citations reveal that ad litem
47
Any doubt concerning that result is express statutory authority to go further.”
removed by the subsequent statement, in W. Va.
48
Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 86 See also Brisco-Wade v. Carnahan,
(1991), that in Crawford Fitting the Court “held 297 F.3d 781, 782 (8th Cir. 2002) (holding that §
that [§§ 1920 and 1821] define the full extent of a 1920 does not authorize taxing mediation fees as
federal court’s power to shift litigation costs absent costs).
49
fees are taxable costs in those states only be-
cause state statutes or procedural rules spe- It is up to Congress to decide whether
cifically provide for that result in a way that guardian ad litem fees may be taxed as costs.
the federal rules and statutes do not. In its present form, the statute Congress en-
acted to address that topic fails to enumerate
As I have already shown, the Alabama, guardian ad litem fees as a taxable item of
Mississippi, North Carolina, Tennessee, and cost, and, as a result, ad litem fees may not be
Texas procedural rules contain specific provi- taxed under rule 54(d), any more than can the
sions stating that ad litem fees may be taxed as expenses disallowed in Mota, Coats, and Bris-
costs. In addition, the majority relies on sev- co-Wade. If Congress chooses, it can fix this
eral state statutes, evidently in the hope that result by amending § 1920; unless and until it
they will compare favorably to § 1920. They does so, Crawford Fitting precludes district
do not. The Illinois statute cited by the major- courts from taxing guardian ad litem fees.
ity provides: “A guardian ad litem or special
administrator is entitled to such reasonable
compensation as may be fixed by the court to Although I will not repeat all the arguments
be taxed as costs in the proceedings and paid I make in part I.B, supra, sovereign immunity
in due course of administration.” 755 ILL. also bars the result advocated by the majority
COMP. STAT. ANN. 5/27-4 (West 2004). Sim- in this “alternative” holding. This would be so
ilarly, the Michigan statute relied on by the even if Crawford Fitting had never been de-
majority provides: “The guardian ad litem cided, or had been decided in a manner con-
may be allowed reasonable compensation by sistent with that case’s dissenting opinion and
the court appointing him, to be paid and taxed today’s majority opinion. Regardless of the
as a cost of the proceedings as directed by the courts’ power to tax costs under rule 54(d)(1),
court.” MICH. COMP. LAWS ANN. § 600.- the government has waived its immunity from
2045(2) (West 2004). costs only as enumerated in § 1920. See 28
U.S.C. § 2412(a)(1).
All of these states expressly provide for the
compensation of guardians ad litem as a tax-
able court cost, something federal law flatly IV.
does not do. “[I]t is a general rule that in ac- One sentence in the majority opinion sums
tions at law, as distinguished from suits in up the real reason for its decision to affirm the
equity, costs may not be allowed in the ab- district court:
sence of statute or rule of court authorizing
such relief.” Van Ingen, supra, 30 A.L.R.2d While we recognize the underlying treat-
1148 § 2. “[I]n many jurisdictions the courts ment the Supreme Court gave to the inter-
have been expressly authorized by statute to play between Rule 54(d) and § 1920 in
tax as costs fees for the services of guardians Crawford Fitting, we are reluctant to and
ad litem.” Id. thus do not apply any such proscription
50
here to the taxation of guardian ad
litem fees as costs . . . .
Maj. Op. at 26 (emphasis added). Reluctance
to reach a result the majority perceives as un-
palatable is no excuse for ignoring controlling
Supreme Court precedent or for re-writing
rules and statutes. Those powers properly lie
with others. I therefore respectfully dissent.
51