FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

ORLANDO GARCIA, 

Plaintiff-Appellant,

 v. 

GATEWAY HOTEL L.P., a 

California Limited Partnership, 

Defendant-Appellee.

No.21-55926 

D.C. No. 

2:20-cv-10752-

PA-GJS 

OPINION

Appeal from the United States District Court

for the Central District of California

Percy Anderson, District Judge, Presiding

Argued and Submitted February 13, 2023

Pasadena, California

Filed September 15, 2023

Before: A. Wallace Tashima, Andrew D. Hurwitz, and 

Bridget S. Bade, Circuit Judges.

Opinion by Judge Bade;

Dissent by Judge Hurwitz
2 GARCIA V. GATEWAY HOTEL L.P.

SUMMARY*

Americans with Disabilities Act / Costs

The panel affirmed the district court’s award of costs to 

the defendant in an action brought under the Americans with 

Disabilities Act (“ADA”).

Federal Rule of Civil Procedure 54(d)(1) allows courts 

the discretion to award costs to prevailing parties unless a 

federal statute “provides otherwise.” The panel held that 

Brown v. Lucky Stores, Inc., 246 F.3d 1182 (9th Cir. 2001) 

(addressing the ADA standard for awarding costs to 

defendants), was effectively overruled by Marx v. General 

Revenue Corp., 458 U.S. 371 (2013) (holding that an award 

of costs in an action brought under the Fair Debt Collection 

Practices Act is governed by Rule 54(d)(1)). The panel held 

that, accordingly, the fee- and cost-shifting provision of the 

ADA, 42 U.S.C. § 12205, does not “provide otherwise” 

within the meaning of Rule 54(d)(1). Rule 54(d)(1) 

therefore governs the award of costs to a prevailing ADA 

defendant and allows such an award in the court’s discretion.

The panel concluded that in Green v. Mercy Housing, Inc., 

991 F.3d 1056 (9th Cir. 2021) (applying Brown in a suit 

under the Fair Housing Act), the court did not hold, sub 

silentio, that Brown and Marx are reconcilable. Because 

Rule 54(d)(1) controls whether defendants may be awarded 

costs in this ADA action, the district court did not abuse its 

discretion in denying the plaintiff’s motion to retax costs, 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
GARCIA V. GATEWAY HOTEL L.P. 3

thereby keeping the court’s prior award of costs to the 

defendant intact.

Dissenting, Judge Hurwitz agreed with the majority that 

after Marx, Rule 54(d)(1) controls the award of costs to a 

prevailing defendant in an ADA action and that prior 

caselaw holding that the ADA “provides otherwise” than 

Rule 54(d)(1) cannot be reconciles with Marx. Judge 

Hurwitz, however, wrote that the three-judge panel was not 

free to reach those conclusions because it was bound by 

Green’s holding regarding an identical costs provision in the 

Fair Housing Act.

COUNSEL

Dennis J. Price II (argued), Seabock Price APC, Pasadena, 

California; Russell C. Handy, Potter Handy LLP, San 

Francisco, California; for Plaintiff-Appellant.

Phillip H. Stillman (argued), Stillman & Associates, Miami 

Beach, Florida, for Defendant-Appellee.

OPINION

BADE, Circuit Judge:

This case requires us to clarify the circumstances under 

which a defendant may be awarded its costs in an action 

brought under the Americans with Disabilities Act of 1990 

(“ADA”), 42 U.S.C. § 12101 et seq. Appellee Gateway 

Hotel L.P. (“Gateway”) contends that the standard for 

awarding costs to ADA defendants is governed by Federal 

Rule of Civil Procedure 54(d)(1), which allows courts the 
4 GARCIA V. GATEWAY HOTEL L.P.

discretion to award costs to prevailing parties “[u]nless a 

federal statute . . . provides otherwise.” Relying on Brown 

v. Lucky Stores, Inc., 246 F.3d 1182, 1190 (9th Cir. 2001), 

which extended the Christiansburg standard1for awarding 

defendants’ attorney’s fees to awarding costs, Appellant 

Orlando Garcia contends that the ADA’s fee- and costshifting statute “provides otherwise” because it permits 

ADA defendants to receive their costs only where there is a 

showing that the action was frivolous, unreasonable, or 

groundless. Therefore, he contends that the district court 

should have granted his motion to retax costs, which would

have, in effect, denied Gateway’s application for costs.

The district court denied Garcia’s motion because it 

concluded that our decision in Brown is irreconcilable with

the United States Supreme Court’s intervening opinion in 

Marx v. General Revenue Corp., 568 U.S. 371 (2013), and 

was therefore effectively overruled. See Miller v. Gammie, 

335 F.3d 889, 900 (9th Cir. 2003) (en banc). Thus, the 

district court concluded that Rule 54(d)(1) governs the award 

of costs to a prevailing ADA defendant and allows such an 

award in the court’s discretion.

We agree with the district court and conclude that our 

decision in Brown cannot be reconciled with the Court’s 

decision in Marx, and therefore it has been effectively 

overruled. Accordingly, we hold that Rule 54(d)(1) governs 

the award of costs to a prevailing ADA defendant, and such 

costs may be awarded in the district court’s discretion.

1 See Christiansburg Garment Co. v. EEOC, 434 U.S. 412, 421 (1978) 

(concluding that “a district court may in its discretion award attorney’s 

fees to a prevailing defendant in a Title VII case upon a finding that the 

plaintiff’s action was frivolous, unreasonable, or without foundation, 

even though not brought in subjective bad faith”).
GARCIA V. GATEWAY HOTEL L.P. 5

I.

On October 2, 2020, Garcia filed a complaint in the state 

court challenging Gateway’s “reservation policies and 

practices,” specifically “the lack of information provided on 

[Gateway’s] website that would permit [Garcia] to 

determine if there are rooms” that would accommodate his 

disability. Garcia contended that Gateway’s failure to 

provide this information violated the ADA and California 

law.

Gateway removed the case to federal court, and Garcia 

subsequently amended his complaint, dropping his claim 

based on California law. Gateway then moved to dismiss

under Federal Rule of Civil Procedure 12(b)(6), and the 

district court granted the motion after concluding that the 

information on Gateway’s website complied with the ADA’s 

requirements. Gateway then sought an award of attorney’s 

fees, which the court denied because it could not “conclude 

on the record before it that [Garcia]’s case was frivolous or 

unreasonable” and because there was no “clear indication 

that [Garcia]’s lawsuit was vexatious.”

Gateway then filed an application for costs, which the 

court awarded. After filing two motions to retax costs that 

the court denied on procedural grounds, Garcia filed a third 

motion to retax costs, arguing that costs may be awarded to 

defendants under the ADA only if the action was frivolous, 

unreasonable, or without foundation. The court denied this 

motion after concluding that Brown—the legal authority 

cited in support of Garcia’s position—was irreconcilable 

with the Supreme Court’s intervening decision in Marx. The 

district court followed “the Supreme Court’s intervening 

decision in Marx rather than the Ninth Circuit’s earlier 

precedent” in Brown, and determined that Rule 54(d)(1) 
6 GARCIA V. GATEWAY HOTEL L.P.

governed the award of costs in ADA actions. And because 

Rule 54(d)(1) provides that costs may be awarded to a 

prevailing party at the district court’s discretion, the court 

concluded that Gateway properly received its costs in the 

action and denied Garcia’s motion to retax costs.

This appeal timely followed.

II.

We review an award of costs for an abuse of discretion. 

Resnick v. Netflix, Inc. (In re Online DVD-Rental Antitrust 

Litig.), 779 F.3d 914, 924 (9th Cir. 2015) (citing Arakaki v. 

Lingle, 477 F.3d 1048, 1069 (9th Cir. 2007)). “A district 

court abuses its discretion if it does not apply the correct law 

or if it rests its decision on a clearly erroneous finding of 

material fact.” Id. (quoting Jeff D. v. Otter, 643 F.3d 278, 

283 (9th Cir. 2011)). We review de novo the threshold 

question of the applicable legal standard for awarding costs. 

See Tutor-Saliba Corp. v. City of Hailey, 452 F.3d 1055, 

1059–60 (9th Cir. 2006) (reviewing de novo whether the 

district court applied the correct legal standard in awarding 

attorney’s fees).

III.

A.

Under Rule 54(d)(1), “[u]nless a federal statute, these 

rules, or a court order provides otherwise, costs—other than 

attorney’s fees—should be allowed to the prevailing party.” 

The issue in this case is whether the fee- and cost-shifting 

provision of the ADA, 42 U.S.C. § 12205, “provides 

otherwise” and thus that statutory standard, rather than Rule 

54(d)(1), governs the award of costs to prevailing ADA 

defendants.
GARCIA V. GATEWAY HOTEL L.P. 7

In Marx, the Supreme Court was asked to clarify when a 

federal statute “provides otherwise.” 568 U.S. at 373–74. 

Marx involved a suit brought under the federal Fair Debt 

Collection Practices Act (“FDCPA”), which, like the ADA, 

includes a provision for awarding fees and costs. See id. 

That provision—15 U.S.C. § 1692k(a)(3)—permits a court 

to “award to the defendant attorney’s fees . . . and costs” if it 

finds that the plaintiff brought its FDCPA action “in bad 

faith and for the purpose of harassment.”

After the petitioner in Marx was ordered to pay the costs 

of the action following an unsuccessful FDCPA suit, she 

appealed, arguing that the district court lacked authority to 

award the defendant’s costs because § 1692k(a)(3) “sets

forth the exclusive basis for awarding costs in FDCPA 

cases” and “the court had not found that she brought the case 

in bad faith and for the purposes of harassment.” 568 U.S. 

at 375. The Tenth Circuit concluded that the district court 

could award costs under Rule 54(d)(1) because “nothing in 

the text, history, or purpose of § 1692k(a)(3) indicated that 

it was meant to displace” that Rule. Id. at 375–76.

The Supreme Court affirmed. Id. at 376. Although 

“Rule 54(d)(1) codifies a venerable presumption that 

prevailing parties are entitled to costs,” the Court explained 

that “the word ‘should’ makes clear that the decision 

whether to award costs ultimately lies within the sound 

discretion of the district court.” Id. at 377. Thus, because 

Rule 54(d)(1) “grants district courts discretion to award 

costs, a statute is contrary to the Rule”—and thus “provides 

otherwise”—“if it limits that discretion.” Id. “A statute,” 

the Court continued, “may limit a court’s discretion in 

several ways”: for example, a statute might “preclude[] a 

court from awarding costs to prevailing defendants” at all, or 

it might preclude a court from awarding costs when certain 
8 GARCIA V. GATEWAY HOTEL L.P.

conditions have not been satisfied. Id. at 377–78. But a 

“statute providing that ‘the court may award costs to the 

prevailing party’ . . . is not contrary to the Rule because it 

does not limit a court’s discretion.” Id. at 378.

Applying this principle, the Court concluded that

§ 1692k(a)(3) was not contrary to Rule 54(d)(1). Id. at 380. 

The petitioner in Marx argued that, while § 1692k(a)(3) did 

“not expressly limit a court’s discretion to award costs,” it 

did so “by negative implication.” Id. By “specifying that a 

court may award attorney’s fees and costs when an action is 

brought in bad faith and for the purpose of harassment,” the 

petitioner reasoned that “Congress intended to preclude a 

court from awarding fees and costs when bad faith and 

purpose of harassment are absent.” Id. at 381.

The Court rejected this argument for reasons that are 

instructive here. “First, the background presumptions 

governing attorney’s fees and costs” cut against the 

petitioner’s negative-implication argument. See id. at 381–

82. The Court explained that, unlike costs—which are 

presumptively awarded to prevailing parties—the “opposite 

presumption exists with respect to attorney’s fees,” which 

are generally paid by each litigant, “win or lose.” Id. 

(citation omitted). That general rule, however, was subject 

to the federal courts’ “inherent power to award attorney’s 

fees in a narrow set of circumstances, including when a party 

brings an action in bad faith.” Id. at 382. Because 

§ 1692k(a)(3) “provides that when the plaintiff brings an 

action in bad faith, the court may award attorney’s fees to 

the defendant,” it left “the background rules for attorney’s 

fees intact,” making it “dubious to infer congressional intent 

to override the background rule with respect to costs.” Id. 

(emphases added). Instead, § 1692k(a)(3) was “best read as 
GARCIA V. GATEWAY HOTEL L.P. 9

codifying a court’s pre-existing authority to award both 

attorney’s fees and costs.” Id.

Second, the structure of § 1692k(a)(3) confirmed the

conclusion that Congress did not intend to override the 

background rule for costs. See id. at 383–84. In its entirety, 

§ 1692k(a)(3) provided for fees and costs in two 

circumstances: to plaintiffs upon a showing that the 

defendants violated the FDCPA, and to defendants upon a 

showing that the plaintiff brought the action “in bad faith and 

for the purpose of harassment.” Id. at 383. “If Congress had 

excluded ‘and costs’” from the second sentence of 

§ 1692k—which governs awards of fees and costs to 

defendants—“the expression of costs in the first sentence 

and the exclusion of costs in the second sentence [would 

mean] that defendants could only recover attorney’s fees 

when plaintiffs bring an action in bad faith.” Id. at 383. But 

Congress did not draft the statute that way. And Congress’s 

decision to draft the statute without “a negative implication 

that costs are precluded” weighed against reading the statute 

in a way that gave “effect to any implied limitation.” Id. at 

384.

Third, the Court noted that “the language in 

§ 1692k(a)(3) sharply contrasts with other statutes in which 

Congress has placed conditions on awarding costs to 

prevailing defendants.” Id. (citing 28 U.S.C. § 1928 and 42 

U.S.C. § 1988(b)). While “Congress need not use explicit 

language to limit a court’s discretion under Rule 54(d)(1), its 

use of explicit language in other statutes caution[ed] against 

inferring [such a] limitation in § 1692k(a)(3).” Id. “Had 

Congress intended” § 1692k(a)(3)’s cost-shifting provision 

“to displace Rule 54(d)(1), it could have easily done so by 

using the word ‘only’ before” providing for costs on a 
10 GARCIA V. GATEWAY HOTEL L.P.

finding that the suit was brought in bad faith and for the 

purpose of harassment. Id.

Finally, the United States, as amicus curiae, argued in 

favor of the petitioner that § 1692k(a)(3) displaced Rule 

54(d)(1) based on the canon of construction that a precisely 

drawn statute controls over a general rule. Id. at 386–87 

(citing EC Term of Years Trust v. United States, 550 U.S. 

429, 433 (2007)). The Court rejected that argument and 

reiterated that “the context of § 1692k(a)(3) indicates that 

Congress was simply confirming the background rule that 

courts may award to defendants attorney’s fees and costs 

when the plaintiff brings an action in bad faith.” Id. at 387. 

Because petitioner “did not bring th[e] suit in bad faith,” the 

case fell outside the statutory provision, and Rule 54(d)(1) 

therefore applied. See id. at 387–88.

With these background principles in mind, we now turn 

to whether § 12205 is contrary to Rule 54(d)(1).

B.

1.

We begin, as we must, “with the language of the statute 

itself.” United States v. Ron Pair Enters., Inc., 489 U.S. 235, 

241 (1989).

The ADA’s fee- and cost-shifting provision states:

In any action or administrative proceeding 

commenced pursuant to this chapter, the 

court or agency, in its discretion, may allow 

the prevailing party, other than the United 

States, a reasonable attorney’s fee, including 

litigation expenses, and costs, and the United 
GARCIA V. GATEWAY HOTEL L.P. 11

States shall be liable for the foregoing the 

same as a private individual.

42 U.S.C. § 12205. This is precisely the type of statute that 

the Court in Marx held “is not contrary to the Rule because 

it does not limit a court’s discretion.” See 568 U.S. at 378. 

Because § 12205 does not “provide otherwise” than Rule 

54(d)(1), the Rule controls the awarding of costs to 

prevailing ADA defendants.

2.

As Garcia correctly notes, however, the Supreme Court 

long ago imbued fee-shifting provisions in civil rights 

statutes with a judicial gloss. In Christiansburg, the Court 

concluded that, in Title VII cases, courts may award 

attorney’s fees to a prevailing defendant only where the 

plaintiff’s action was found to be “frivolous, unreasonable, 

or without foundation.” 434 U.S. at 421. And in Brown, we 

extended the Christiansburg standard for fees to an award of 

a defendant’s costs in an action brought under the ADA. 

Brown, 246 F.3d at 1190. Garcia contends that because 

Christiansburg addressed fee shifting under Title VII, and

Brown addressed cost shifting under the ADA, these cases

involved “civil rights litigation,” while Marx, which 

addressed cost shifting under the FDCPA, did not.

In Garcia’s view, because Congress enacted the ADA 

after the Court decided Christiansburg, Congress intended 

to apply the Christiansburg standard for an award of 

defendant’s fees to an award of costs under the ADA. Garcia 

observes that “the statutory language [in § 12205] makes 

fees and costs parallel,” and argues that provides further 

evidence of Congress’s intent to engraft the Christiansburg

standard for attorney’s fees onto costs awards. Thus, like the 
12 GARCIA V. GATEWAY HOTEL L.P.

petitioner in Marx, Garcia argues by negative implication 

that § 12205 “sets forth the exclusive basis for awarding 

costs” to ADA defendants. See 568 U.S. at 375.

But Marx instructs that we must consider the 

Christiansburg standard in light of the background 

presumptions regarding awards for attorney’s fees and costs. 

See Marx, 568 U.S. at 381. These background presumptions 

convince us that § 12205 does not limit the district court’s 

discretion in awarding costs and therefore is not contrary to 

Rule 54(d)(1).

Christiansburg involved the fee- and cost-shifting 

provision in Title VII of the Civil Rights Act of 1964. 434 

U.S. at 413–14. Title VII included a section that, like 

§ 12205, provided that a district court “in its discretion[] 

may allow the prevailing party . . . a reasonable attorney’s 

fee as part of the costs.” Id. at 413–14 n.1 (quoting 41 U.S.C. 

§ 2000e-5(k)).

The Court in Christiansburg concluded that the most 

straightforward reading of the statute—that “[a] prevailing 

defendant is entitled to an award of attorney’s fees on the 

same basis as a prevailing plaintiff”—failed to account for 

“at least two strong equitable considerations” that supported 

awarding fees to a prevailing Title VII plaintiff but were not 

present in the case of a prevailing defendant. Id. at 418. 

First, Congress intended for private rights of action to be the 

primary enforcement mechanism for violations of civil 

rights. See id. (“[T]he plaintiff is the chosen instrument of 

Congress to vindicate a policy that Congress considered of 

the highest priority.” (internal quotation marks and citation 

omitted)). “Second, when a district court awards counsel 

fees to a prevailing plaintiff, it is awarding them against a 

violator of federal law.” Id. These two considerations led 
GARCIA V. GATEWAY HOTEL L.P. 13

the Court to conclude that Congress could not have intended 

to award defendants their attorney’s fees on the same basis 

as a prevailing plaintiff. Id. at 418–19.

But critical to this case, the Court also explained that 

Congress could not have intended for defendants to be 

limited to a fee award “only in a situation where the plaintiff 

was motivated by bad faith in bringing the action.” Id. at 

419. After all, “if that had been the intent of Congress, no 

statutory provision would have been necessary, for it has 

long been established that even under the American 

common-law rule attorney’s fees may be awarded against a 

party who has proceeded in bad faith.” Id.; see Marx, 568 

U.S. at 382 (“[W]e have long recognized that federal courts 

have inherent power to award attorney’s fees in a narrow set 

of circumstances, including when a party brings an action in 

bad faith.”). Considering this background presumption 

alongside legislative history that demonstrated Congress 

“wanted to protect defendants from burdensome litigation 

having no legal or factual basis,” the Court concluded that 

“a district court may in its discretion award fees to a 

prevailing defendant . . . upon a finding that the plaintiff’s 

action was frivolous, unreasonable, or without foundation, 

even though not brought in subjective bad faith.” 

Christiansburg, 434 U.S. at 420–21.

Thus, in announcing the rule that defendants could only 

recover their attorney’s fees on a showing that the action that 

was frivolous, unreasonable, or without foundation, the 

Court gave force to Congress’s intent to protect both 

plaintiffs’ interests in bringing civil rights actions without 

fear of ruinous financial consequences and defendants’ 

interests in avoiding defending against patently meritless 

suits. See id. These competing interests led the Court to 

adopt a test for awarding defendants attorneys’ fees that is 
14 GARCIA V. GATEWAY HOTEL L.P.

less demanding than the background presumption. See id. at 

419.

Under Garcia’s reading, however, defendants do not 

receive their costs upon meeting a less demanding standard 

than the background presumption that “prevailing parties are 

entitled to costs,” Marx, 568 U.S. at 377; indeed, under

Garcia’s reading, defendants do not receive costs even upon 

meeting the background presumption. Instead, Garcia 

insists that Congress intended for defendants to demonstrate 

that an action was frivolous, unreasonable, or without 

foundation in order to receive costs. This reading leads to 

the illogical conclusion that Congress intended for attorney’s 

fee awards to be governed by a less demanding standard than 

the background rule but for cost awards to be governed by a 

more demanding standard than the background rule. The 

better reading, as the Court explained in Marx, is that 

Congress intended for the less demanding standard to apply 

to an award of attorney’s fees while leaving the background 

rule for costs intact. 568 U.S. at 382 (“Because 

§ 1692k(a)(3) codifies the background rule for attorney’s 

fees, it is dubious to infer congressional intent to override the 

background rule with respect to costs.”). And this reading 

finds particular force when, as here, the statute parallels Rule 

54(d)(1) in providing that costs “should be allowed to the 

prevailing party.” Compare Fed. R. Civ. P. 54(d)(1), with 

42 U.S.C. § 12205 (permitting the court to allow costs to 

“the prevailing party”); see also Marx, 568 U.S. at 386 

(explaining that other fee- and cost-shifting provisions in 

Title 42 “overlap with Rule 54(d)(1)” by providing for an 

award of costs to prevailing parties (citing, e.g., 42 U.S.C. 

§§ 3612(p) and 3613(c)(2))).

In short, the background presumptions for awarding fees 

and costs, combined with congressional intent as explained 
GARCIA V. GATEWAY HOTEL L.P. 15

in Christiansburg, demonstrate that, in permitting fee 

awards for civil rights defendants only on a showing that an 

action was “frivolous, unreasonable, or without foundation,”

Congress did not intend to displace the background 

presumption that costs may be awarded to prevailing parties.

3.

Garcia next argues that § 12205 is contrary to Rule 

54(d)(1) because it is akin to “other statutes in which 

Congress has placed conditions on awarding costs to 

prevailing defendants.” See Marx, 568 U.S. at 384. A 

cursory review of these statutes demonstrates they are 

distinguishable. For example, 28 U.S.C. § 1928 provides 

that costs may not be included in a judgment for patent 

infringement “unless the proper disclaimer has been filed in 

the United States Patent and Trademark Office prior to the 

commencement of the action.” Similarly, 42 U.S.C. 

§ 1988(b) provides that costs are not available “in any action 

brought against a judicial officer for an act or omission taken 

in such officer’s judicial capacity . . . unless such action was 

clearly in excess of such officer’s jurisdiction.” Thus, unlike 

§ 12205 and Rule 54(d)(1), these statutes presume that costs 

are unavailable, and the plaintiff must show certain 

conditions have been met to recover costs. And the 

conditions imposed on collecting costs in these statutes have 

no relation to the background presumptions related to fees 

and costs, and thus do not indicate congressional intent to 

specifically displace those presumptions. Because Garcia 

fails to demonstrate that Congress specifically intended to 

place conditions on awarding costs to prevailing ADA 

defendants in § 12205, we again conclude that section is not 

contrary to Rule 54(d)(1).
16 GARCIA V. GATEWAY HOTEL L.P.

IV.

Garcia’s arguments on appeal require us to consider our

holdings in two previous cases: Brown and Green v. Mercy 

Housing, Inc., 991 F.3d 1056 (9th Cir. 2021). According to 

Garcia, Brown held that “awards of costs are not permissible 

against ADA plaintiffs without a showing of frivolousness, 

lack of merits or unreasonableness.” He insists that Brown 

remains binding precedent, notwithstanding Marx, and 

points to our recent decision in Green as reiterating Brown’s 

continued vitality. And because, in Garcia’s view, Brown 

still controls, he concludes that the Christiansburg standard 

applies to costs and displaces Rule 54(d)(1).

We first consider whether our holding in Brown can be 

reconciled with Marx before briefly considering Green.

A.

In Brown, we primarily considered the application “of 

the ADA’s so-called ‘safe harbor’ provision,” 42 U.S.C. 

§ 12114(b)(2), which extends the Act’s protections to 

individuals participating in supervised rehabilitation 

programs who have ceased drug use. 246 F.3d at 1186. We 

also briefly considered “the standard to be used in denying 

costs to a prevailing defendant under the ADA.” Id. We

determined that the Christiansburg standard governed 

awarding fees under § 12205 and concluded that, “[b]ecause 

§ 12205 makes fees and costs parallel, . . . the 

Christiansburg test also applies to an award of costs to a 

prevailing defendant under the ADA.” Id. at 1190.

To harmonize Brown’s invocation of the Christiansburg 

standard to determine an award of costs to an ADA 

defendant with Marx, we would be required to read Brown 

as applying only when an action was “frivolous, 
GARCIA V. GATEWAY HOTEL L.P. 17

unreasonable, or without foundation,” see Brown, 246 F.3d 

at 1190, and conclude that Rule 54(d)(1) governs costs in all 

other circumstances. Thus, we would read Brown’s

invocation of Christiansburg in much the same manner as 

the Court in Marx read § 1692k(a)(3)’s invocation of “bad 

faith and for the purpose of harassment” as a basis for 

awarding costs to prevailing defendants as limited to those 

circumstances. See Marx, 568 U.S. at 374, 387. In Marx, 

the Court explained that § 1692k(a)(3) may govern the 

award of costs where the defendant shows the suit was 

brough in bad faith and for purposes of harassment but that, 

where this showing is not made, Rule 54(d)(1) would control 

as the background rule. See id. Because we apply the 

Court’s reasoning in Marx to reject the argument that 

§ 12205 has a negative implication, we can similarly read 

Brown’s invocation of the Christiansburg standard as simply 

inapplicable where, as here, the district court did not make a 

finding that the action was frivolous, unreasonable, or 

without foundation. See Marx, 568 U.S. at 387 (“The statute 

speaks to one type of case—the case of the bad-faith and 

harassing plaintiff. Because Marx did not bring this suit in 

bad faith, this case does not fall within the ambit of” 

§ 1692k(a)(3) (internal quotation marks and alteration 

omitted)). And because § 12205 does not apply to Garcia’s 

action, Rule 54(d)(1) does. See id.

The problem with this reading is that in Brown we 

explicitly stated that the Christiansburg standard permits an 

award of attorney’s fees to the defendant “only if the 

plaintiff’s action was frivolous, unreasonable, or without 

foundation.” Brown, 246 F.3d at 1190 (emphasis added) 

(internal quotation marks and citation omitted). We further 

explained that “[b]ecause § 12205 makes fees and costs 

parallel, we hold that the Christiansburg test also applies to 
18 GARCIA V. GATEWAY HOTEL L.P.

an award of costs to a prevailing defendant under the ADA.” 

Id. Thus, Brown is more reasonably read as holding that 

ADA defendants are never permitted an award of costs 

without a finding that the action was frivolous, unreasonable, 

or without foundation. And that reading is irreconcilable 

with Marx.

In Brown, we considered the standard for awarding fees 

without the benefit of the Supreme Court’s guidance in Marx 

that such standards are to be evaluated based on “the 

background presumptions governing attorney’s fees and 

costs.” Marx, 568 U.S. at 381. Had we decided Brown with 

the benefit of that guidance, we likely would have concluded 

that, although the statute considers awarding fees and costs 

in parallel, it does so cognizant of the background 

presumption that the standard for awarding defendants’ fees 

is more demanding than the standard for awarding 

defendants’ costs. And, for reasons explained above, see 

supra § III.B.2, considering § 12205’s text in light of these 

background presumptions compels the conclusion that costs 

may be awarded to prevailing defendants without a showing 

of frivolousness, unreasonableness, or a lack of foundation, 

which is consistent with Rule 54(d)(1).

Thus, while cognizant of our obligation to apply our 

existing precedent consistently with higher authority when

possible, see Rodriguez v. AT&T Mobility Servs., LLC, 728 

F.3d 975, 979–80 (9th Cir. 2013), we conclude that to the 

extent Brown allows an award of costs to ADA defendants 

only on a finding that the plaintiff’s action meets the 

Christiansburg standard, that conclusion has been 

“undercut” by the Supreme Court’s opinion in Marx “in such 

a way that the [two] cases are clearly irreconcilable,” Miller, 

335 F.3d at 900. Remaining faithful to the binding precedent 

of the court of last resort, we conclude that Brown has been 
GARCIA V. GATEWAY HOTEL L.P. 19

effectively overruled by Marx and hold that an award of 

costs to ADA defendants is governed by Rule 54(d)(1).

B.

Finally, Garcia points to Green, in which we applied 

Brown to hold that “a plaintiff bringing suit under the Fair 

Housing Act should not be assessed fees or costs unless the 

court determines that his claim is ‘frivolous, unreasonable, 

or groundless.’” Green, 991 F.3d at 1058 (quoting 

Christiansburg, 434 U.S. at 422). According to Garcia, 

because Green was “decided nearly a decade after Marx” 

and “applies the exact same rationale as Brown,” Green’s 

holding demonstrates that Brown and Marx are reconcilable. 

But there is no indication in Green that we considered Marx 

when determining the proper standard for awarding 

defendants their costs, and a review of the briefing and the 

oral argument in that case reveals that the parties did not 

raise Marx.

2

 Therefore, we reject Garcia’s suggestion that 

2 See Consolidated Opening Brief for Appellant Rodney Green, Sr., at 

48–49, Green v. Mercy Housing, Inc., 991 F.3d 1056 (9th Cir. 2021) 

(Nos. 20-15134, 20-15358), ECF No. 20 (arguing that the court should 

extend Brown to costs awards under the FHA because the “ADA and 

FHA fee/costs statutes are strikingly similar,” but with no mention of 

Marx); Consolidated Answering Brief for Appellee Mercy Housing, Inc., 

et al., at 56–57, ECF No. 31 (arguing that the court should not extend the 

holding in Brown to an award of costs under the FHA because “the cost 

provisions of the ADA and the FHA are fundamentally dissimilar,” with 

no mention of Marx); Consolidated Reply Brief for Appellant Green at 

12–14, ECF No. 41 (arguing that the Ninth Circuit should follow out-ofcircuit precedent to apply the Christiansburg standard to the recovery of 

costs under the FHA, with no mention of Brown or Marx); see also Oral 

Argument, Green v. Mercy Housing, Inc., (No. 20-15134), 

http://www.ca9.uscourts.gov/media (argument focusing on several 

issues on appeal, but only briefly addressing the award of costs without 

any mention of Marx).
20 GARCIA V. GATEWAY HOTEL L.P.

in Green we concluded, sub silentio, that Brown and Marx

are reconcilable.

Moreover, “[q]uestions which merely lurk in the record, 

neither brought to the attention of the court nor ruled upon, 

are not to be considered as having been so decided as to 

constitute precedents.” Cooper Indus., Inc. v. Aviall Servs., 

Inc., 543 U.S. 157, 170 (2004) (citation omitted). Or as we 

recently reiterated, “[p]rior precedent that does not ‘squarely 

address’ a particular issue does not bind later panels on the 

question.” United States v. Kirilyuk, 29 F.4th 1128, 1134 

(9th Cir. 2022).3 Because Green did not consider Marx in 

the context of determining the appropriate standard for 

awarding defendants their costs, we reject Garcia’s argument 

that its holding evinces that Brown and Marx may be 

reconciled.

V.

In conclusion, we hold that the fee- and cost-shifting 

provision of the ADA, 42 U.S.C. § 12205, is not contrary to 

Rule 54(d)(1) and that, consistent with that Rule, a 

3 See also, e.g., Brecht v. Abrahamson, 507 U.S. 619, 630–31 (1993) 

(rejecting argument that stare decisis required the application of a 

particular harmless-error standard in habeas cases because “we have 

never squarely addressed the issue, and have at most assumed the 

applicability of the Chapman standard on habeas,” and concluding “we 

are free to address the issue on the merits”); United States v. Ped, 943 

F.3d 427, 433–34 (9th Cir. 2019) (concluding that even though prior 

cases had stricken invalid sentencing provisions without remanding, that 

did not mean the practice was appropriate because “[i]n none of those 

cases did we discuss section 3742(f)(1) or consider how it affected our 

authority to modify a sentence without remanding”); United States v. 

Pepe, 895 F.3d 679, 688 (9th Cir. 2018) (“Just as cases are not 

precedential for propositions not considered, . . . Clark does not foreclose 

an interpretation of the statute that it didn’t consider . . . .”).
GARCIA V. GATEWAY HOTEL L.P. 21

prevailing ADA defendant may be awarded its costs at the 

district court’s discretion and without a finding that the 

action was frivolous, unreasonable, or without foundation. 

To the extent that this holding conflicts with Brown, we 

conclude that Brown is irreconcilable with, and effectively 

overruled by, the Supreme Court’s opinion in Marx.

Because Rule 54(d)(1) controls whether defendants may 

be awarded costs in this ADA action, the district court did 

not abuse its discretion in denying Garcia’s motion to retax 

costs, thereby keeping its prior award of costs to Gateway 

intact.

AFFIRMED.

HURWITZ, Circuit Judge, dissenting:

I agree with the majority that after Marx v. General 

Revenue Corp., 568 U.S. 371 (2013), Rule 54(d)(1) controls 

the award of costs to a prevailing defendant in an ADA 

action. I also agree with the majority that our prior caselaw 

holding that the ADA “provides otherwise” than Rule 

54(d)(1) cannot be reconciled with Marx. But, I part 

company with my colleagues on whether our three-judge 

panel is free to reach these conclusions. 

I.

In Miller v. Gammie, we held that a three-judge panel is 

bound by the opinion of a prior panel absent a conflicting 

“subsequent” or “intervening” Supreme Court decision. 335 

F.3d 889, 899–900 (9th Cir. 2003) (en banc). If Brown v. 

Lucky Stores, Inc.—which held the ADA allowed an award 

of costs to a prevailing defendant “only if the claim was 
22 GARCIA V. GATEWAY HOTEL L.P.

frivolous, unreasonable or lacking foundation,” 246 F.3d 

1182, 1186 (9th Cir. 2001)—were our only relevant 

precedent, our task would be easy because Marx intervened 

between Brown and this case.

But, Brown is not our only relevant precedent. In Green 

v. Mercy Housing, Inc., decided after Marx, we held that an 

identical costs provision in the Fair Housing Act only allows 

a costs award to a prevailing defendant on the same 

heightened showing. 991 F.3d 1056, 1057–58 (9th Cir. 

2021).1 Because Green came after Marx, Marx plainly did 

not “intervene” between Green and the case now before us. 

See United States v. Eckford, 2023 WL 5210863, at *5 (9th 

Cir. Aug. 15, 2023); CoreCivic, Inc. v. Candide Grp., LLC, 

46 F.4th 1136, 1141 (9th Cir. 2022). 

II.

The majority excuses the absence of an “intervening” 

Supreme Court decision because the Green panel did not 

address whether Marx had abrogated Brown. The majority 

therefore concludes that Green is not precedential. But, the 

very issue for decision before us today—whether a 

prevailing defendant in an ADA action may be awarded 

costs absent proof that the complaint was frivolous, 

unreasonable, or lacking in foundation—is precisely the one 

decided in Green. Put differently, Green is exactly on point; 

whether correctly decided or not, it squarely stands for the 

proposition that Rule 54(d)(1) does not apply.

1

In a subsequent memorandum disposition, a panel held, without citing 

Marx, that Green controlled costs awards under the ADA and FHA. See 

Yellowstone Womens First Step House, Inc. v. City of Costa Mesa, 2021 

WL 4077001, *2 (9th Cir. Sept. 8, 2021).
GARCIA V. GATEWAY HOTEL L.P. 23

I am aware of no case—and the majority has cited 

none—holding that a three-judge panel of this Court may 

ignore an opinion expressly on point simply by finding that 

it did not correspond with a prior Supreme Court opinion. 

To be sure, we need not treat cases that do not expressly 

decide an issue as implicitly doing so. Thus, United States 

v. Kirilyuk, cited by the majority, held that prior opinions 

interpreting an Application Note according to its terms did 

not implicitly hold that the Note was consistent with the 

governing Sentencing Guideline. 29 F.4th 1128, 1134–35 

(9th Cir. 2022). But here, we need not imply a holding from 

a prior opinion’s silence. Rather, Green expressly resolves 

today’s issue—whether Rule 54(d)(1) applies to an award of 

costs under the ADA.

III.

Because I agree with the majority that Marx is not 

conciliable with our previous ADA and FHA costs 

jurisprudence, my concern with following the Miller threejudge panel rule may on the surface seem overly technical. 

But, if we have a rule, we are required to follow it until 

changed by the appropriate panel. And, if we today allow a 

three-judge court not to follow Circuit precedent when it 

conflicts with Supreme Court decisions handed down before

our precedent, future three-judge panels may well feel free 

to abrogate Circuit precedent even when the conflict with a 

non-intervening Supreme Court ruling is not as clear as it is 

today. We avoid that potential problem by following Miller. 

The proper course—even when the eventual outcome is, as 

today, seemingly preordained—is to require an en banc court 

to inter our previous decisions unless an intervening 

Supreme Court abrogates them.