United States Court of Appeals

Fifth Circuit



## FILED

August 12, 2004

Charles R. Fulbruge III

Clerk UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

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 thus1 Mr. an d Mrs. Gaddis, who also sued the United States for

loss of c onsortium with Courtlin, feared that an unexpected

conflict of interest with Courtlin might occur during the

litigation.

2 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21635308, at *1 & n.1 (5th Cir. July 10, 2003) (unpublished), gave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,

i nitially 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 t he 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

Courtl in. 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 prema ture, 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 parents2 Rule 17(c), Infants or Incompetent Persons , provides:

Whenever an in fant 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 su e 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 acti on or shall

make s uch other order as it deems proper for the

protection of the infant or incompetent person.

Fed. R. Civ. P. 17(c).

3 urged that Federal Rule of Civil Procedure 17(c) 2 authorizes th e

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 cour t agreed with the Gaddis parents and appointed

Mr. Bean as guardian ad litem “t o represent the interests of the

minor Plaint iff, 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 agai nst the government as costs3 Rule 54(d), Costs; Attorneys’ Fees , provides in part:

(1) Costs Other than Attorneys’ Fees. Exc ept when

express provision therefor is made either in a statute of

t he United States or in these rules, costs othe r than

attorneys’ fees shall be allowed as of course to the

prevailing party unless the court otherwise directs; but

costs ag ainst 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 capa city in any court having

jurisdiction of such action. A judgment for cos ts 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) (W est 2004). The government further

con tends that because the Federal Tort Claims Act (“FTCA”),

28 U.S.C. § 1346(b), §§ 2671-2680, does not include a provision

4 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 jurisdic tion to award Mr. Bean guardian a d litem

expenses as costs under Rule 54(d) at all, and specifically to tax

suc h costs against the government because the government in

28 U.S.C. § 2412(a) 4 had only waived its sovereign immunity to payregarding 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 c ourt 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 secti on 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 o f 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 for costs as enumerated in 28 U.S.C. § 1920, 5 and guardian ad litem

f ees are not included in § 1920. The government also contended

that even if the court could award the guardian a d 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

.6 Dickerson v. United S tates , 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 C rawford 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 T he district court then held a hearing to determine issues

pertaining to the entry of judgment conce rning Courtlin. During

that hearing, the court fully considered the government’s arguments

regarding the t axation of guardian a d 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, 3 32 (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

attributa ble to any legal services performed by the guardian

ad litem

. 6 These three cases were decided after C rawford Fitting

,

and the district court correctly pointed out that the Dickerson and

Lebron cases both specifically involve d the taxation of guardian

ad litem fees against the government whe re the plaintiff had

prevailed in an FTCA claim.

After determining that it could properly tax Mr. Bean’s7

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 allowe d 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 govern ment timely appealed the taxation of guardian

ad litem fees only, and a panel of this Court, in a p er curi a m

unpublished opinion, affirmed the award of costs. We agreed to

hear the case en banc

.

DISCUSSION

Here, the government seeks furth er 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).

Whethe r a district court may tax guardian a d litem fees as costs7 Sectio n 1821, P er 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 terr itory 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 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 pr evailing 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. § 1821 7 limits the amount of litigants’ witness feesin 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 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. C raw ford Fitting involved two cases of awards to

prevailing parties that covered all the expe nses reasonably

incurred for their experts, bestowed under th e authority of Rule

54(d) as cost s. 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 § 19 20.” 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 these10

provision s 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 part y. 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 an y 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 con clusion 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

in escapable effect of these sections in combination is

that a federal court may tax expert w itness 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 C rawford 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) or11

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: “ C rawford Fitting said that we would not

lightly find an im plied repeal of § 1821 o r of § 1920, which it

h eld to be an express limitation upon the types of costs which,

absent other authority, may be shifted by federal courts.” C asey

,

499 U.S. at 87.

The prec ise issue in C asey 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.” I d. at 97-

102; 42 U.S.C.A. § 1988(b) (West 2004). The Court ultimately held:

“§ 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 § 1 821.” C asey, 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 afte r it provided its8 See United States ex rel. Wallace v. Flintco Inc.

, 143 F.3d

955, 972 (5th Cir. 1998) (a pplying C rawford Fitting and setting

aside cross-awards of expert witn ess 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 spe cified by § 1821 were overruled by

Crawford Fitting ); Coats v. Penrod Drilling Corp.

, 5 F.3d 877, 891

(5th Cir. 1993) (citing Crawford Fitting t o affirm the district

court’s decision not to award expert and witness fees).

12 interpretation of § 1988 as to attorney’s fees in Casey and in 1991

amended § 1988 to exp licitly 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. L andgraf

,

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 C oats 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.” I d. at 89113

(footnote and citation omitted). However, in C oats

, 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 exper t fees, and costs of photocopies

necessarily obtained for use in the case. C oats

, 5 F.3d at 891-92.

Here, we acknowledge the g overnment’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), par ticularly 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 govern ment in an FTCA case;

second, because even if Rule 1 7(c) did not constitute the

alternative express st atutory authority as required by Crawford

Fitting , we reasonably interpret the meaning of the phrase “court9 The Supreme Court has br iefly mentioned guardians a d

litem in the context of interpreting one federal statute, solely by

analogy, in Rowland v. California Men’s Colony, Unit II Men’s

Advis ory Council , 506 U.S. 194, 211-12 (1993), a case that

considered whether an agency or organization cou ld proceed as a

civil party in forma pauperis

, where the Court held that only

natural persons, not artificial entities, could proceed i n 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 affid avit 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

quest ion is whether Congress intended to deny § 1915

14 appointed ex perts” in § 1920(6) to encompass guardians a d litem

such that district courts can tax their compensation as costs per

§ 1920, including against the government in an FTCA case; and

finall y, because even in light of C rawford 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 inbenefits 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 the ir 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 ju dge may direct for the

protection of infants and other persons.

Fed. Equity R. 70 (8th ed. 1933).

15 the publi shed 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 o f 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 986,16

988 (5th Cir. 1984) (“[T]he courts have consistently recognized

that they have inherent power to appoint a guardian ad litem [or

n ext friend] when it appears that the minor’s [or incompet ent

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 th e

protection of infants [or incompetent persons].” A delman

, 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. C

hrissy F.

, 883 F.2d at 27 (noting that when making

this Rule 17(c) guardian ad litem appointment determination, “the17

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

, b ut also, as Rule 17(c) expressly

directs, to “mak e 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 c osts 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 defendan ts, 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 in terests of minor litigants who cannot protect

themselves.” I d. (citation omitted). Although we acknowledge

Rule 17(c) does not specifically state that district courts may tax11 The F TCA 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

in dividual 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 n egligent 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 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

F itting

. S ee, e.g., ICG Communications, Inc. v. Allegi ance

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 pu rposes 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 sovereig n immunity by the

nonprevailing government in an FTCA case. 11 In the absence of anyprivate 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. Ye llow 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 o mitted as unnecessary. I d. 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 Supreme Court holding or instruction ot herwise, 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) W hether a guardian ad litem needs to be app ointed

to protect the interests of the minor or

incompet ent person, and if so, who will be

appointed to best serve in that capacity;

(b) Whether the guard ian a d 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 a d 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 nonpr evailing 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 fe es as costs against the nonprevailing

government in an FTCA case.20

Alternatively, were Rule 17(c) not construed by t he Supreme

Court to constitute the alternative express statutory authority as

required by Crawford F itting 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.” W est 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. 1 990) (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 9 36, 944 (7th Cir.

1988) (agreeing with the Fifth Circuit and describing the court’s

authority to interpret the meaning of the phrases in § 1920,21

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 statu tory construction under

§ 1920(2) as st enographic 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 al lowance 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)); Federal12 We note that at least one district court, after C rawford

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. A llstate

Ins. Co., Inc. v. Jones

, 763 F. Supp. 1101, 1102 (M.D. Ala. 1991).

22 Procedure, Lawyer’s Edi tion § 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

subpoena s 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 § 19 20 does not specifically mention

guardian ad litem fees in its list of costs, a guardian a d litem

appointed by a court pursuant to Rule 17(c) can be reasonably

interpreted as a court app ointed expert under § 1920(6). 1 2 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.” N oe v. True

, 507 F.2d 9,13 See H.R. Rep. 95-1687, at 12 (1978), r eprinted in 1978

U.S.C.C.A.N. 4652, 4664. Prior to the 1978 amendment of 28 U.S.C.

§ 192 0, which added the entirety of subsection (6), there was no

s pecific subsection that dealt with either interpreters or court

appointed experts. The 1978 amendment was passed as part of the

23 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. S ee 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”) (citati on omitted). Guardians a d litem thus perform

independent f unctions that are integral and essential to the

judicial process. S ee Cok v. Cosentino , 876 F.2d 1, 3 (1st Cir.

1989) (f inding guardians a d 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 per son 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 soCourt Interprete rs 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), r eprinted 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 Uni versity 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. I d. at 87 (noting

how no subsection of § 1920 could be “ reasonably read t o 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 wai ver of

sovereign immunity by the government under the FTCA. Yellow Cab

,

24 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 fal ls within the reasonable scope of § 1920(6)’s

authorization for cour ts 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 co sts are taxable against the nonprevailing

government. 15340 U.S. at 547. We also note that the Court quoted from the text

of the statutory provisio n which ultimately became the FTCA:

“Costs shall be allowed in all courts to the successful claimant to

the same extent as if the Unite d States were a private litigant,

except that such costs shall not include attorneys’ fees.” I d. at

547 n.4. Although this language was removed when that provision

was reenacted as the present FTCA in 1948, th e 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 This Circuit ’s post- C rawford 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 f ees not construed by

the Supreme Court to be reaso nably included in § 1920's list of

taxable costs, this Court concludes that our post- Crawford Fitting

precedent 16 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 treatme nt 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:1 7 Hull v. United States , 53 F.3d 1125, 1128-29 (10th Cir.

1995 ) (upholding taxation of guardian a d 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 f or the district court to determine which

costs were attributable to role of guardian ad litem versus

attorney ad litem and to charge them agains t nonprevailing party

pursuant to court’s authority und er Rule 54(d)) (post- C rawford

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- C rawford

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 5 4(d)) (post- C rawford Fitting ); Jones

, 763 F.

Supp. at 1102 (allowing prevailing p arty 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 L and, 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.”) (postCrawford 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 (a) No court in this Circuit ever h as read C rawford

Fitting to d isallow the taxation of guardian a d

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 gu ardian

a d litem fees can be taxed as court costs, either

before or after Crawford Fitting

– i ncluding the

Fourth, Eighth, Tenth, and D.C. Circuits – has

agreed that they can 17 ;

(c) Several district courts, including those in the

Seventh and Eleventh Circuits, have also agreed

that guardian ad litem fees can be taxed as costs 18 ;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 § 15 70, at 506 (2d ed. 1990)(noting how the law of

several states provides for the taxation of guardian ad litem fees

as costs).

27 (d) Neither the term “guardian ad litem ” nor the phrase

“guardian ad litem fees” appears anywhere i n 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 an y 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

l item f ees 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 fe es 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 a20 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. S ee, 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); M ulholland v. Schneider Serv. Co., Inc.

, 661 F.2d 708, 712 (8th Cir. 1981) (applyin g 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 practice that has been widely accepted as fair and proper in the

absence of express language from the Supreme Court requiring that

change.

Ove rall, 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 dete r mining 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. D ickerson

, 280 F.3d at 478 (citations29

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).

H ere, the district court underwent a thorough expen se-byexpense determination as to whi ch 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

discr etion to determine the appropriate amount of costs to be

awarded to Mr. Bean.

CONCLUSION

Having carefully reviewed the record of this case and the

p arties’ respective briefing and arguments, for the reasons set

forth above, we AFFIRM the decision of the district court to award

th e court appointed guardian a d 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.30

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. S ee 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 pri vate litigant, Rule 17 does not

(and arguably could not) provide the clear and explicit waiver of

sovereign immunity that would permit an o rder directed at the

government, which is the issue in today’s case. S ee, e.g.

, United

States v. Nordic Village, Inc. , 503 U.S. 30, 33-34 (1992); cf. 28

U.S.C. § 2412(a)(1).31

SMITH, dissenting, joined by J O LLY,

EMILIO M. GARZA, B ENAVIDES, and

PRADO:

In an act of Orwe llian doublethink, 2 1 the

majo r ity concludes that although “Rule 17(c)

does not specifically state” that guard ian a d

litem fees may be taxed as c osts, i t nevertheless provides “express statutory authorization”

for that result. C

ompare Maj. Op. at 18 with

id. at 13, 18. 22 Emboldened by that cogent insight, the majority then embarks on a broad

survey of legal

fictions, highlighted by an impliedly explicit waiver of sovereign immunit y

and the discovery that a statute has binding

force despite its repeal in 1948.

As if sitting in Congress, the majority is ultimately able to agree on nothing more than

a result: Guardian a d litem fees may be taxed

as costs against the government despite sovereign immunit

y and despite Craw

ford Fitting

Co. v. J.T. Gibbons, I

nc. , 482 U.S. 437

(1987). The doctrinal basis for that result is so

illusory, however, that the majority feels compelled to insulate itself in layer upon layer o f

“altern at ive” holdings. As a result, the true

basis for toda y’s decision remains a mystery 

### SS even to the majority that wrought it.

The unescapable reality is that the fede ral

rules and statutes fail to provide that ad litem

fees may be taxed as costs, and the only other

authority for that proposition

, duPont v. S.

Nat’l Bank

, 771 F.2d 874 (5th Cir. 1985), fails

to survive Crawford Fitting

. Because the majority is unable to accept the policy implications of that result, it boldly in fers t he existence of a power that Co ngress has not yet

seen fit to provide, then brazenly declares that

it is “expressly” and “specifically” provided for

in rules and statutes that are entirely silent on

the subj ect . Such an opinion can only be the

product of a majority that is more confident in

its result than in its reasoning, so I respectfully

dissent.

I.

In its first and least convincing holding, the

majority accepts the argument that C rawford

Fitting implicit ly overrules duPont

, so the majority agrees that it is t herefore necessary to

find a rule or statute that expressly authorizes 21 “ Doublethink means t he power of

holding two contradictory beliefs in one’s mind

simultaneously, and a c cepting both of them

. . . . The process has to be conscious, or it would not be

carried out with sufficient precision, but it also has

to be unconscious, or it wou ld bring with it a

f eeling of falsity and hence of guilt.” G. Orwell,

Nineteen Eighty-Four 176 (1949).

22 This is not the first time an en banc

major ity of this court has reached such a

perplexing result. See Kelly v. Lee’s Old

Fashioned Hamburgers, Inc.

, 908 F.2d 1218,

1222 (5th Cir. 1990) (en banc) (Smith, J.,

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)].”).32

the taxation of ad litem fees as costs. 23 Faced

with that challenge, the majority holds that the

power to tax costs should be expre ssly enumerated in rule 17(c), so the majority according ly finds 

### S

S notwithstanding the text of the

rule 

### SS that it is expressly enumerated. 24

As I will demonstrate, the majority’s reasoning is sever ely flawed. It is no exaggeration to o bserve that the majority (1) ignores

the plain meaning of some of the most elementary wor ds in the English language; (2) relies

on a long-since repealed waiver of immunit y;

(3) gi ves t he federal rules an impermissibly

broad mandate; and (4) then inexp licably

refuses to remand for application of its newlydrafted rules.

A.

The majority finds its “express authorization” in two parts of rule 17(c): first, in the

language that provides for the appointment of

a guardia n ad litem ; and second, in the language that allows the court to issue other orders for the protecti on of the minor. C f. F ED

. R. C IV

. P. 17(c). I address those claims in turn.

1.

It is not surprising that the meaning of the

t erm “express” has changed little since 1990,

when this co urt deci ded K elly and first begat

the concept of an impliedly-express statement

.Then, as now, the term “express” meant “directly and distinctly stated or expressed rather

than implied or left to inference.” W E BSTER ’ S

T HIRD N EW I NT ’ L D ICTIONARY 803 (MerriamWebster 1986). 2 5 It is, to put it mildly, “t he

very opposite of ‘implied.’” Kelly , 908 F.2d at

1222 (Smith, J., dissenting).

Because rule 17(c) makes no mention of either the taxation of costs or the payment of ad

litem fees, there is no sense inwhich it “expressly” provides that a guardian’s fees may be

taxed as cos ts. If the power to tax such fees

as costs exists somewhere within rule 17(c), it

can only be as an implicit component of the

district court’s authority to appoint a guardian.

As a result, the majority’s claim that rule 17(c)

contains “express statutory authorization” for

the taxation of ad lit em fees as costs is patently false. 26

23 See Crawford Fitting , 482 U.S. at 445

(requiring “explicit statutory

. . . authorization” for

the taxation of costs not enumerated in 28 U.S.C.

§ 1920(6)).

24 See Maj. Op. at 18 (stating that “[i]t is

precisely due to such legitimate and pra c tical

reasons that district courts must also have the

inherent authority and discretion to tax guardian ad

litem fees as costs against nonprevailing parties,”

and relying on a decision that describes rule 17(c)

as “silent on the subject”). 25 See also B LACK ’ S L AW D ICTIO N ARY

6 0 1 (7th ed. 1999) (“ express

, adj. Clearly and

unmistakab ly communicated; directly stated.”);

M ERRIAM -W EBSTER ’ S C OLLEGIATE D ICTIONARY

645 (Merriam-Webster 1998) (“1a: directly,

firmly, and explicitly stated. b: E XACT

, P RECISE .”)

26 Crawford Fitting

, 482 U.S. at 445,

speaks in terms of “explicit” authority. “Explicit”

means “characterized by full cle ar expression :

being without vagueness or ambi guity : leaving33

This fl aw in the majority’s argument becomes all the more glaring when rule 17(c) is

compared with rule 53, which governs the appointment and compensation of masters. See

F ED

. R. C IV

. P. 53. The rules committee

knows how to be explicit when it wishes to be,

as rule 53 makes abundantly plain.

The newly revised rule 53(a)(3) provides

that “[i]n appointing a master, the court must

consi der the fairness of imposing the likely

expenses on the parties.” F E D

. R. C IV

. P. 53-

(a)(3 ) (West 2004). 2 7 Rule 53(h), by its own

title, expressly addresses the “compensation”

of masters. Subsectio n (h)(1) provides that

“[t]he court must fix the master’s compensation before or after judgment on the basis and

terms stated in the order of appointment.”

F ED

. R. C IV

. P. 53(h)(1). Subsection (h)(2)

further speci fies that the master’s compensation may be paid by either party or both, or

from a fund or subject matter of the acti on

within th e court’s control . F E D

. R. C IV

. P.

53(h)(2).

Thus, it is fair to say that rule 53’s express provisions dealing with both the appointment

and the compensation of special masters consti tute “explicit” authorization of the kind contemplated in Crawford Fitting. Rule 17(c), in

contrast, provides only for the appointment of

guardians ad litem . It says nothing whatsoever about the means by which an ap pointed

guardian i s to be compensated and, accordingly, do es not contain the “explicit statutory

authorization” the m a

jority needs to reach its

result.

Ironically, this point is further illustrated by

the majority’s advocacy of one of its “alternative” holdings. In arguing that Crawford Fitting is inapposite here, the majority claims that

t he federal rules are similar to state laws that

provide for the compensation of guardians ad

litem

. S ee Maj. Op. at 28 & n.19. The critical

difference, however, between federal law and

the state laws relied on by the majority, is that

the latter all specifically and unambiguously

provide that guardi an a d litem fees may be

taxed as costs.

For example, t he majority cites Alabama

Rule of Civil Procedure 17(d). Much like federal rule 17, Alabama’ s rule 17(c) provides

that a distr ict court “shall appoint a guardian

ad l it em (1) for a minor defendant, or (2) for

an incompetent person n ot otherwi se represented in an act ion.” A L A

. R. C IV

. P. 17(c).

Unlike the feder a l rule, however, Alabama’s

rule also includes subpart (d), which provides:

In all cases in which a guardian ad lit em is

required, the court must ascertain a reasonable fee or compensation to be allowed and

paid to such guardian ad litem for services nothing implied.” W E BSTER ’ S T HIRD N EW I N T ’ L

D ICTIONARY 801 (Me

rriam-Webster 1986). The

power identified by the district court no more fits

this definition than it does that of the word “express.”

27 Before its revision, rule 53(a) SS which

was titled “Appointment and Compensation” SSprovided that “[t]he compensation to be allowed to a

master shall be fixed by the court, and shall be

charged upon such of the partie s . . . as the court

may direct.” F ED

. R. C IV

. P. 53(a) (West 2003).34

rendered in such cause, to be taxed as

a part of the costs in such action, and

which is to be paid when collected as

other costs in the act ion, to such

guardian ad litem.

A LA

. R. C IV

. P. 17(d) (cited in the Maj. Op. at

28 n.19).

Mississippi’s rules are similar. As with the

feder al and Alabama rules, Mississippi has a

rule 17(c) that provides for the appointment of

a guardian ad litem for unrepresented minors.

M ISS

. R. C IV

. P. 17(c). Just as in Alabama, but

unlike the federal rule, the appointment provision is immediately followed by a section that

addresses the compensation of guardians:

In all cases in which a guardian ad litem is

required, the court must ascertain a reasonable fee or compensation to be allowed and

paid to such guardian ad litem for his service rendered in such cause, to be taxed as

a part of the cost in such action.

M ISS

. R. C IV

. P. 17(d). 28 If the similarly worded state rules 17(c) already “expressly” provided for that resul t,

these provisions would be wholly extraneous.

The fact is that they are not . No m atter how

much the majority thinks the practice in federal

courts shoul d

be the same as in these states,

rule 17(c) provides only fo r the a ppointment

of guardians a d litem

, and there is no commensurate federal rule or statute specifying the

manner in which thei

r fees are to be paid. If

that omission is bad policy, the power to craft

a solution lies solely in the hands of Congress

and the drafters of the federal rules, not simply

in the abusive “exercise [ of] our authori ty as

an en banc Court.” Cf. Maj. Op. at 20.

2.

Having created for the district co urts, out

of whole cloth, the “inherent authority” to tax

ad litem fees as costs, the next step in the majority’s linguistic putsch is to find a way to

place that power into the text of the federal

rules. Cf. Maj. Op. at 17. The majority does

this by seizing on rule 17(c)’s provision that

the district courts shall “make such other order

as it deems proper for the protecti on of the infant or incompetent person.” I d. According

to the majority, “[t]his additional power is necessarily required so the district court can effectuate its appointment of a competent,

independent guardian ad litem .” Id.

That argument is premised on a selective

quotation of rule 17(c). The full sentence relied on by the majority provides: 28 See also N.C. R. C IV

. P. 17(b)

(providing that the court “may appoint some

discreet person to act as guardian ad litem

. . . and

fix and tax his fee as part of the costs”); T ENN

. R.

C IV

. P. 17.03 ( “ The court may in its discretion

allow the guardia n ad litem a reasonable fee for

services, to be taxed as costs.”); T EX

. R. C IV

. P.

173 (“the court shall app o int a guardian ad litem

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.35

The court shall appoint a guardian ad litem

for an infant or incompet e nt person not

otherwise represented in an action or shall

make such other order as it deems proper

for the protecti on of the infant or incompetent person.

F ED

. R. C IV

. P. 17(c) (emphasis added). Contrary to the majority’s understanding, the plain

meaning of this passage is t hat rul e 17(c) affords the district courts a choice between appointing an ad litem and issuing oth er orders

for the protecti on of the minor; it does not

gi ve the court the power to do both.

Far from being a power given in furtherance

of the power to appoint an ad litem

, the “other

order” clause is a grant of discretion that

enables the district court to protect the minor

without appointing a guardian. That reading

of rule 17(c) is not only plain o n the face of

the text, but is confirmed by our decisio ns 2 9

and those of other circuits. 30 A leading treatise on federal procedure succinctly explains that

“the court may either appoint a guar dian ad

litem or ‘make such other order as it deems

proper for the protecti on of t he infant or

incompetent person.’” 4 J A MES W. M OORE ET

AL

., M OORE ’ S F ED ERAL P RACTICE § 17.21-

[3][b] (Mat t hew Bender 3d ed.) (emphasis

added). Because it is used only as an alternative to the appointment of a guardian ad litem

, the “other order” clause provides the majority

no cover.

In short, then, the majority purports to rely

on “express statutory authority” for the taxation of ad litem fees. Instead, it relies only on

an implied power that it creates and then

reads into a provision of the rules that can be

invoked only when an ad litem is not appointed.

B.

The majority’s first rationale is equally unconvincing in its discussionof the government’s claim to sovereign immunit y. Even assuming, arguendo

, that a d litem fees may be

taxed as cos t s under some combination of

rules 17(c) and 54(d)(1), as the majority holds,

those costs ca n not automatically be taxed

against the governm

e nt as the losing party in

an actio n brought under the Federal Tort

Claims Act (“FTCA”), 28 U.S .C. § 2671 e t

seq

. This is because the FTCA 

### S S as it is cur29 See, e.g., Roberts v. Ohio Cas. Ins. Co.

256 F.2d 35, 39 (5th Cir. 1958) (providing that a

district court should usually app oint an a d litem

, but may instead “after weighing all the

circumstances, issue such order as will protect the

minor in lieu of appointment of a guardian ad litem

. . . and may even decide that such appointment is

unneces s ary”); Adelman ex rel. Adelman v.

Graves

, 747 F.2d 986, 988-89 (5th Cir. 1984)

(same).

30 See, e.g., Gardner by Gar d ner v.

Parson, 874 F.2d 131, 140 (3d Cir. 1989) (stating

t hat “under Rule 17(c), a court may appoint a

guardian, or it may decline to do s o if the child’s interests may be protecte d in an alternative

manner.”); Genesco, Inc. v. Cone Mills Corp

., 604

F.2d 281, 285 (4th Cir. 1979) (Rule 17(c) requires

the court either to appoint a guardian “or take other

equivalent protective action”).36

rently drafted 

### SS

d o es not waive the government’s immunit

y from the taxation

of costs

and attorney’s fees.

Rather, costs and attorneys’ fees may only

be taxed against the government to the extent

that immunit

y is waived by the Equal Access

to Justice Act (“EAJA”), 28 U.S.C. § 2412.

See Sanchez v. Row e , 870 F.2d 291, 296 (5th

Cir. 1989). The EAJA provides, in relevant

part:

Ex c ept 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.

§ 2412(a)(1). That language unambiguously

provides that costs may be taxed again st the

United States only if they are among those

enumerated in 28 U.S.C. § 1920. Al though

§ 1920 lists a number of items of taxable costs,

it says nothing about guardian ad litem fees. 31

As a result, even i f t he majority is correct in

holding that a d litem fees may be taxed as costs under rule 17(c), sovereign immunit y has

not been waived and the costs may not be

taxed against the government. Thus, the district court’s order taxing ad litem fees must be

reversed.

To avoid this straightforward result 

### SS w hich

is, evidently, so unpalatable to the maj ori ty

that it will go to extraordinary lengths to avoid

it 

### SS the majority takes two approaches. In the

body of the opinion , it assesses sovereign

immuni t y using the correct statute, but holds

that “the inherent powers and responsibility

under rule 17 (c) to make such orders as the

court deems proper also constitute the alternati ve express statutory authorization to tax

guardian ad litem fees as costs to meet the

requirements of § 2412(a)(1) and d efeat any

associated claim of sovereign immunit y by the

nonprevailing government in an FTCA case.”

Maj. Op. at 19, 25. In contrast, the majority’s

footnotes take a completely different approach

and argue that immunit

y is waived b y the

t erms of the FTCA itself 

### S S or rather, by the

terms of the FTCA as it stood more than a half

century ago. See id. at 19 n.11 & 25-26 n.15

( relying on language in 28 U.S.C. § 931 (a)

that was repealed in 1948).

There are several serious flaws in the majority’s analysis. First, the majority mistakenly

reads the opening phrase of § 2412(a)(1) as

providing that there can be specific statuto ry

exceptions to the definition of costs as used in

the EAJA. Properly understood, that line provides something markedly different: that there

are cases in which the government does no t

waive its immunit

y from the taxation of costs.

Second, the court further mangles the English 31 I recognize that one of th e majority’s

“alternati ve” holdings is that § 1920 enumerates

guardian ad

litem fees as a taxable cost. I refute

that claim in pa rt II. For present purposes, however, my discussion is focused only on the majority’s first rationale, in which it posits that rule 17(c)

specifically provides both that ad litem fees may be

taxed as costs, and that they may be taxed against

the government under § 2412(a)(1).37

language by finding that rule 17(c) contains an

“express” waiver of immunit y, despite recognizing that it does not “specifically state” anything to that effect. Compare Maj. Op. at 19;

with id. at 18. Third, the court gives the federal rules an impermissibly broad mandate, and

then, fourth, ignores words of limi tation that

provide for exceptions to § 2412(a)(1) only as

specified by “statute.” Finally, in what can

only be seen as a concession that its analysis of

§ 2412(a)(1) fails to pass muster, the majority

simply brushes that statute aside in preference

for language that was removed from the FTCA

in 194 8 and has since been replaced by other

statutes.

1.

To begin with, the entire premise of the majority’s discussion of sovereign immu nit y is

utterly flawed, because it is directed at proving

that ad litem fees fit a non-existent exception

to the EAJA. This is a minor point, however,

so I will not belabor it.

The c o urt claims to find, in rule 17(c), a

specific statutory exception to § 2412(a)(1)’s

limit ed waiver of immunity. Even if the court

could show that its exception is bo t h specific

and located in a statute 

### SS something it cannot

do, as expla i ned in sub-parts 2 through 4, infra 

### SS it would not support the conclusion

reached by the majority.

The majority flat ly misreads § 2412(a)(1)’s

opening clause: “Except as otherwise specifically provided by statute.” Properly understood, those words do not mean that there are

instances in which cos t s may be awarded

against the United States even though they are not specified in § 1920. To the contrary , the

st atute’s definition of costs as being tho se

items that are enumerated in § 1920, but not

including attorney’s fees, is absolute.

Instead, the phrase “Except as o therwi se

specifically provided by statute” only modifies

the statement that “a judgment for costs

. . . may be awarded to the prevailing party in any

civil action brought by

o r against the United

States.” It provides that there may be instances in which costs are not recoverable against

the United States, even though they are among

those enumerated in § 1920 and are not attorneys fees. 32 The exception refers only t o the

subject and predicate of the sentence: the combined statement that a judgment for costs may

be awarded against the United States. It does

not create an exception to the definition of

costs as items that are “enumerated in § 1920

o f this title, but not including the fees and

expenses of attorneys.”

So, the majority’s claim that it has identified

a specific, statutorily grounded exception to §

2412 ( a)(1) is immaterial: any such exception

can serve only to prevent the taxation of costs;

it can not serve to permit the taxation of things

32 See also G

. Van Ingen, Allowance of

Fees for Guardian ad Litem Appointed for Infant

Def endant, as Costs , 30 A.L.R.2d 1148 § 1

(Whitney 2004) (“[T]he governing statutes or rules

of court generally allow costs in favor o f the

prevailing party to the litigati o n. However, the

statut es sometimes recognize the propriety of

denying costs in favor of the pr evailing party,

under the proper circumstances.”)38

that are not costs.

2.

The court’s second mistake 

### SS ident ifying a

putative exception to § 2412(a)(1) and calling

it “specific” 

### SS

is far worse, and it is one that

should by now seem familiar. Even assuming,

arguendo

, that the EAJA allows for exceptions

to the definition of the word costs as used in §

2412(a)(1), rule 17(c) does not co nsti tute a

“ specific” exception to the governmen t’s

limited waiver of immunity.

The term “specifically” means “with exactness and pr ecision : in a definite manner.”

W EBSTER ’ S T HIRD N EW I NT ' L D ICTIONARY

2187 (Merriam-Webster 1986). Again, because rule 1 7(c) says nothing at all about

guardian ad litem fees, it does not “specifically

provi de” for a waiver of the government’s

immunity from their taxation.

Even if the “other order” clause in rule

17(c) is held out as the porti on of the rule that

provides for a waiver of immunity, 33 it fails to

do so specifically. That clause only says generally that the court may make other orders; it

says nothing specific about what those orders

may be. It therefore provides no exception to

§ 2412(a)(1)’s general rule that costs may not

be taxed against the government unless they

are enumerated in § 1920.

This is not merely a question of the majority’s ignorin g t he plain meaning of the word “specific” in its interpretation of § 2412(a)(1).

Even absent the EAJA’s express req u irement

that exceptions to its terms be “specific,” the

same result is dictated by “the traditional principle that the Government’s consent to be sued

must be construed st rictly in favor of the

sovereign, and not enlarge[d]

. . . beyond what

the language requires.” U nited States v. Nordic Village, Inc.

, 503 U.S. 30, 34 (1992) (internal quotati ons omitted). “Waivers of the

Government’s sovere ign immunity, to be effective, must be unequivocally expressed.” I d.

(quotations omitted). 34

No matter how much the majority tries to

contort the meaning of rule 17(c), there is no

sense in which it either “specifically,” “explicit ly, ” “expressl

y,” “clearly,” or “unequivocally”

waives so vereign immunity from the taxation

of ad litem fees as court costs. The majority

takes the opposite to our ordinary approach

and finds a waiver of immunit y in a provision

of the federal rules that is completely silent on

the subject.

This impliedly-express waiver of sovereign

immunit y flunks even the most lenient understanding of the clear statement rule. Its presence in an en banc opinion can serve no purpose but to throw our entire sovereign immunity jurisprudence into chaos.

3.

33 An unsupportable claim, for the reasons

I discuss in part I.A.2, supra

. 34 See also United States v. Williams

, 514 U.S. 527, 531 (1995) (“[W]e may not enlarge

the waiver beyond the

purview of the statutory

language.”)39

Th e next flaw in the majority’s analysis of

sovereign immuni

t y is its contention that rule

17(c) is a statute. S ee Maj. Op. at 19. The

majorit y recognizes, of course, that even a

specific waiver of immunit y is ineffective as an

exception to the E AJA unless it is “provided

by statute.” 28 U.S.C. § 2412(a)(1). The

majority 

### SS

citing only a single district court as

authority 

### SS

find s t hat rule 17(c) fits this description. 35

The federal rules are, of course, part of federal law, and we often give them the same effect as statutes. 36 The Rules Enabling Act

even has an

abrogation clause that provides

“[a]ll laws i n conflict with [the] rules shall be

of no further force or effe ct after such rul es

have taken effect.” 28 U.S.C. § 2072(b). So,

to the extent the majority argues that the federal rul e s have “the imprimatur of Congress”

such that they are co n sidered laws, I fully

agree. See Maj. Op. at 19.

Nevertheless, one of the critical differences between the federal rules and statutes is that

the former are restricted to certain limit ed topics. The Rules Enabling Act delegates authority to the Supreme Court o nly to “prescribe

general rules of practice and procedure.” 28

U.S.C. § 2072(a). Moreover, it specifically

provides that “[s]uch rules shall not abridge,

enlarge or modify any substantive right. ” 28

U.S.C. § 2072(b).

The Rules Committee can no more validly

waive the United States’ sovereign immunit y

than thi s court can. It lacks the authority to

speak on behalf of the United States in its capacity as a sovereign party to a lawsuit. If rule

17(c) said what the majority thinks it says, it

would exist in violation of the limit ed grant of

authority under which it was enacted.

The Supreme Court addressed this issue in

United States v. Sherwood

, 312 U.S. 584

(1941), and held:

[N]othing in the new rules of civil practice

. . . authorizes the maintenance of any suit

against the United States to which it has

not otherwise consented . An authority

conferred upon a court to make rules of

procedure for the exercise of its jurisdiction

is not an authority to enlarge that jurisdict ion and the Act of June 19, 1934 . . . authorizing this Court to prescribe rules of

procedure in civil actions gave it no authority to m o dify, abridge or enlarge the substantive rights of litigants or to enl arge or

diminish the jurisdiction of federal courts.

Id . at 589-90. 35 See Maj. Op. at 18 (citing ICG

Communications, Inc. v. Allegiance Telecom

, 211

F.R.D. 610, 613 (N.D. C al. 2002). The I CG

Communications case does not even stand for the

proposition attributed to it by the majority: that the

term “statute” is synonymous with, or at least

includes, the federal rules.

36 See, e.g., United States v. Wilson

, 306

F.3d 231, 236 (5th Cir. 2002) (finding that

“Congress retains an integral, albeit passive, role in

implementing any rules drafted by the Court,” and

that the federal rules can have the same operative

effect as statutes).40

The majority responds with a truism, obse rving that the federal rules apply to FTCA

actions. S ee Maj. Op. at 19 n.11. Of course

they do 

### SS

neither I nor the government contends oth erwise. Indeed, if the federal rules

did not apply to FTCA actions, our problems

would be greater st ill, because t he district

court would have lacked authority even to appoint the guard ian under rule 17(c), let alone

to provide for his compensation. Either way,

that contention is entirely beside the point, because the applicable rules not only fail to say

that they w aive the government’s immunity,

but they lack the capacity t o do so i n any

event.

4.

There is still another problem with the majority’s use of a federal rule to effect a waiver

of immunit y. Again, conceding that the rules

apply to FTCA cases, an d assuming for the

moment that the rules are capable of w aiving

the government’s immunit y, there remains the

problem of whether the rules fit the majority’s

identified exception to § 2412(a)(1). The majority ignores the fact that Congress chose only

t o use the word “statute,” and not “rul e,”

when it provided that there may be exceptions

to the EAJA. Federal law is rife with instances

in which the two terms are held out as independent legal concepts. 37 They have inde pendent meanings, and as a result I cannot

read Congress’s choice of the the word “statute” in § 2412( a)(1) as including both traditional statutes and the federal rules. Rather,

Congress’s use of the word “statute” signals a

conscious decision to limit the sphere of possible exceptions to the EAJ A to laws drafted

by Congress and signed by the President.

Even rule 54(d)(1) 

### SS

an inter pretati on of

which is ostensibly at the heart of the majority’s opinion 

### SS

distinguishes between the two

terms: “Except when express provision therefor is made either in a statute of t he United

States or in these rules . . . .” F ED

. R. C IV

. P.

54(d)(1). That choice of words is almost ident ical t o the first line of § 2412(a)(1), but for

one omission: The EAJA permits exceptions

only “a s o t herwise specifically provided by

statute.” 28 U.S.C. § 2412(a)(1). 38

37 See, e.g., Crawford-El v. Brit ton , 523

U.S. 574, 594 (1998) (sta t ing that “[n]either the

text of § 1983 or any other federal statute, nor the

Federal Rules of Civil Procedur e

, provide

. . .”);

Jack son v. Stinnett , 102 F.3d 132, 134 (5th Cir.

1996) (discussing the Rules Enabling Act and finding that “[a]lthough Congress ha s authorized the

Court to exercise some legislative authority to

regulate the courts . . . [it] may at any time amend

or abridge by statute the Federal Rules of Civil

Procedure

. . . or other federal procedural rules

promulgated under the Rules Enabling Act ”) (internal citations omitted).

38 R ule 11 is similar to rule 54 in that it

also distinguishes betw een the terms “rule” and

“statu te.” It provides that pleadings need not be

verified by affidavit “ [e]xcept when otherwise

specifically provided by rule or statute.” F E D

. R.

C IV

. P. 11(a). Similarly, the Federal Rules of

Bank r uptcy Procedure provide that “[t]he court

may allow cos ts to the prevailing party except

when a statute of the United States or these rules

otherwise provides.” F E D

. R. B ANKR

. P. 7054(b).41

If Congress had wished, it could have provided that exceptions to t h e EAJA may be

“specifically provided by statute or rule,” just

as the Rules Committee provided when drafting rule 54. It did not, however, and as a result this court cannot hold out rule 17(c) as the

source for an exception to the EAJA.

For those reasons , rule 17(c) does not

waive the governme n t’s immunit y from the

taxation of costs that are not enumerated in 28

U.S.C. § 1920. Not only does rule 17(c) fail

“specifically [to] pro vide” an exception to

§ 2412(a)(1), it is also not a statute, and it was

promulgated under a grant of authority that

does not include the power to waive the government’s s ubstantive right to be free from

suit.

5.

Finally, there is the majority’s claim that the

FTCA, rather than § 2412(a)(1), is the relevant

statute fo r purposes of assessing sovereign

immunit y. S ee Maj. Op. at 19 n.11, 25 n.15. 39 That is indeed a tou gh claim to make, given

that the FTCA’s waiver of immunit y speaks

only in terms of “tort claims,” 40 and there is a

separate statute that has no purpose other than

t o specify the terms on which costs may be

taxed against the government. C ompare 28

U.S.C. § 2674, with § 2412( a)(1). “It i s an

elementary tenet of statutory construction that

‘[w]here there is no clear intention otherwise,

a specific statute will not be controlled or

nullified by a general one.’” G u i dry v. Sheet

Metal Workers Nat’l Pension Fund

, 493 U.S.

365, 375 (1990) (quoting Morton v. Mancari

, 417 U.S. 535, 550-51 (19 74)). Because §

2412 is by far the more specific statute on the

topic of the government’s liabilit y for costs, it

c o nt rols over any inferences that may be

drawn from § 2674’s broad statement to the

effect that the government is liable for “tort

The Federal Rules of Crim i nal Procedure also

distinguish between themselves and s tatutes,

providing that “[e]xcept as otherwise provided by

a statute or these rules, the court must not permit

the taking of photographs in the courtroom during

judicial proceedings.” F ED

. R. C RIM

. P. 53.

39 That is a strange position for the

majority to take, because the portions of the text to

which those footnotes correspond discuss sovereign

immunity in the context of the correct statute,

§ 2412(a)(1), not the FTCA. See Maj. Op. at 19,

25. The majority’s footnotes in no way clarify the

manner in which rule 17(c) provides a s pecific exception to § 2412(a)(1)’s limited waiver of immunity; instead, th e y serve only further to muddy

the waters. If the footnotes are correct, the discussion in the body o f the majority opinion is wholly

extra neous. At best, therefore, those footnotes

constitute but another “alternative” holding t hat

can have no purpose except to provide false comfort to a majority that is already well aware of the

dearth of support for its position.

40 No one disputes that the government

was not immune from the Gaddises’ underlying tort

claim, and even the majority cannot bring itself to

assert that the guardian’s request for fees

constitutes a “tort claim” against the United States.

Instead, the issue is only wheth er the waiver of

immunity with respect to the Gaddises’ claim also

encompasses litigation costs incurred in the course

of trial.42

claims” on the same terms as other parties.

To refine its view of the FTCA into a statement that might reasonably control the specific

terms of § 2412(a)(1), the m ajority points to

language that was removed from the FTCA in

1948. S ee Maj. Op. at 25-26 n.15. Relying on

United Sta tes v. Yellow Cab , 340 U.S. 543,

547 n.4 (1951), the majority then argue s that

the current version of the FTC A should be

read as continuing to carry out the policies of

the repealed statute 28 U.S.C. § 931(a) (1946)

(quoted in Yellow Cab

, 340 U.S. at 547 n.4.).

T he majority reads far too much into Yellow Cab

, which specified that it was reading

the old and new statutes as being consistent

with one another because the provisions material to its dispute had been largely reenacted in

§ 2674, with only minor changes in “phraseology.” Id. In contrast, the provisions relevant

to the present dispute were not reenac ted i n

the FTCA in any form. Yellow Cab therefore

provides no basis for the majority’s conclusion

t hat we are bound by repealed language tha t

supposedly undergirds § 2674, rather than the

plain (and valid) language of § 2412(a)(1).

Even if Yellow Cab were not distinguishable on that basis, it still would not provide

support for the majority’s analysis. Y el low

Cab was decided a mere three years after the

FTCA’s revision , and the Court needed only

to reconcile the pre- and post-ame ndment

versions of the same statute. Half a century

later, however, we are requi red al so to consider the significance of the statutes Congress

has enacted in the intervening years: At the time a statute is enacted, it may have

a range of plausible meanings. Over time,

however, subsequent acts can shape or focus those meanings. The “classic judicial

task of reconciling many laws enacted over

ti m e, and getting them to ‘make sense’ in

combination, necessa r ily assumes that the

implications of a statute may be altered by

the implications of a later statute.” United

States v. Fausto

, 48 4 U.S. [439, 453

(1988)]. This is particularly so where the

scope of the earlier statute is broad but the

subsequent statutes more specifically address the topic at hand. As we recognized

recently in United States v. Estate of Romani

, [523 U.S. 517, 530-31 (1998),] “a

specific policy embodied in a later federal

statute should control our con structi on of

the [earlier] statute, e ven though it ha[s]

not been expressly amended.”

Food & Drug Admin. v. Brown & Williamson

Tobacco Corp ., 529 U.S. 120, 143 (2000).

Even if Yellow Cab requires us to assume

that the post-amendment FTCA originally applied to the taxation of costs, we would still be

required to challenge that assumption when it

became inconsistent with intervening statutes.

Because Congress drafted a new statute that

directly addresses the subj ect of costs, we

cannot just ignore it in preference for language

that was repealed in 1948. 41

41 It is also beyond cavil that the EAJA

gene r ally applies to tort suits against the

government. One subsection of the act, §

2412(d)(1)(A), specifically exempts tort cases from43

Th e irony in the majority’s position is that

that position is likely to end up being even

more favorable to the government than the one

I am advocating. Applying the court’s holding

to a far more common problem 

### SS a request for

the payment of attorney’s fees 

### SS i t must al so

be the case that § 2674 of the FTCA continues

to embody the relev ant provisions of the old

statute, § 931(a). That statute flatly prohibited

court s from awarding attorney’s fees against

the government in a tort case. S ee Yellow

Cab

, 340 U.S. at 547 n.4. The EAJA purports

to soften that restriction by allowing an award

of attorney ’s fees in some tort cases under

§ 2412(b), s ee, e.g., Stive v. United States

, 366 F.3d 520, 521 (7th Cir. 2004), while still

refusing to require that they be imposed, even

in cases where the government takes an unjustified position, see § 2412(d)(1)(A).

Under the majority’s holding, courts will be

required to look to the repealed language of §

931(a), and not to § 2412, to determine

whether attorney’s fees may be allowed

against the gove rnment in an FTCA case.

Because § 931(a) prohibits those awards in all

tort cases, the majority’s holding ultimately

will inure to the great detriment of plaintiffs

seeking redress for government wrongs. The majority cann o t so simply escape the

limitations imposed on the waiver of sovereign

immunit y. Because guardian a d litem fees are

not listed in § 1920, they do not fit within §

2412(a)(1)’s requirements. We should reverse

on this basis as well.

C.

Finally, even if the majority correctly holds

that ad litem fees may be taxed against the

government under rule 17(c), it errs in merely

affirming rather than remanding. A remand is

appropriate, because the dist rict court used

rule 54(d)(1), not r ule 17(c), as the basis for

its order taxing ad litem costs.

T h e majority’s own opinion provides district courts the authority to determine

[w]hether the compensation payable to the

guardian ad litem will be treated (1) a s 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

wh o se behalf the guardian ad litem was

appointed.

Maj. Op. at 20. In so doing, the opinion arms

district courts with a level of discretion in applying rule 17(c) that is m ore aki n to that

found in rule 53 (h)(2) than in rule 54(d)(1).

The court need not tax the full amount of the

costs against the losing party, as rule 54(d)

would require, but instead may allocate the

burden among the parties in the manner it finds

most equitable.

Nev e rtheless, by affirming instead of rethe provision that mandates an award of attorney’s

fees against the government whe n it takes an

unreasonable position at trial. No such exception

would be necessary if the EAJA did not otherwise

apply to tort claims brought against the

government.44

manding, the majority denies this discretion to

th e very court for which it was created: the

district court in the instant case. There is no

doubt that the district court relied exclusively

on rule 54(d) in crafting its order taxing costs

against the government: This court’s decisions

unambiguously have held that the power to tax

ad litem fees derived from rule 54(d); 42 the ad

litem moved to have his fees taxed against the

government as cos ts pursuant to rul e 54(d);

and t he district court approved the order in

reliance on our duPont

line of cases.

The district court had no id ea that i t was

empowered to distribute the burden of the ad

li tem ’ s fees on any party other than the government. Nor could it have: Today’s decision

is the first to provide that t he power to tax

costs stems from rule 17(c), not rule 54(d).

Had the district court known of this power, it

may well have found it more equitable to req uire the minor, for whom the ad litem was

appointed, to apply some porti on of his

$4,083,103.66 recovery toward the ad litem ’s

$46,299 fee.

“When law changes in unanticipated ways

during an appeal

. . . this cour t will generally

remand for a new trial to give parties the benefit of the new law and the opportuni ty to present evidence relevant to that n ew standard.”

Deffenbaugh-Williams v. Wal-Mart Sto res,

Inc.

, 188 F.3d 278, 282 (5th Cir. 1999). “The motiv at ion of this rule is fairness: to prevent

i njust ice to a party

who had no reason to expect a changed rule at the time of trial.” Id

.

Even accepting the maj o rity’s eminently

flawed opinion that ad litem fees may be taxed

as costs under rule 17(c), the appropriate remedy is to remand so that the district court can

a pply its newly-created powers under rule

17(c) to determine the most equitable means

of alloc a ting the ad litem ’s fees among the

parties as it sees fit.

II.

The majority also affirms on the “alternative” ground that a court appo inted guardian

ad litem is one of the items of t axable costs

enumerated by Congress in 28 U.S.C. § 1920.

Specifically, the majority finds t hat guardians

ad l item are court appointed experts under

§ 1920(6).

It is notable that the majority repeatedly

defends its view as “reasonable,” but never as

correct. S ee Maj. Op. at 20, 23, 24. That reluctance is not particularly surprising: Even

the plaint iffs concede that the majority’s reading is incorrect, and they disavow any reliance

on it. That concession ordinarily would keep

this court from even entertaining the argument,

because a “party’s conc ession of an issue

means t he issue is waived and may not be

revived.” S mith v. United States , 328 F.3d

760, 770 (5th Cir. 2003).

But even if one joins the majority in ignoring the appellees’ concession, the majori ty’s

first “alternative” holding is manifest ly erroneous, both as an interpre tation of the statute 42 See, e.g., duPont

, 771 F.2d at 882

(“As an officer of the court, the expenses of a

guardian ad lite m are properly taxable as costs

pursuant to Fed. R. Civ. P. 54(d).”).45

and as an application of that s tatute to th e

fa ct s o f this case. The majority’s strained

reading of the text also violates the maxim that

we c o nstrue waivers of sovereign immunity

narrowly and in favor of the sovereign.

A.

This court interprets statut es according to

their plain

meanings. C

onn. Bank of Commerce v. Republic of Congo

, 30 9 F.3d 240,

260 (5th Cir. 2002). “In determining a statute’s plain meaning, we assume that, absent

any contrary definition, ‘Congress intends the

words in its enactments to carry their ordinary,

contemporary, common meaning. ’” I n re

Greenway

, 71 F.3d 1177, 1179 (5th Cir. 1996)

(quoting Pioneer Inv. Serv. v. Brunsw ick

Assoc.

, 507 U.S. 380, 388 (1993)) (internal

quotation marks omitted).

The plain meaning of the phrase “court appointed experts” in § 1920(6) is that it is a reference to experts appointed under Federal

Rule of Evidence 706. The rule likewise is

titled “Court Appointed Experts,” and courts

consistently refer to individuals appointed under that rule by the same name. In addition to

this common usage, the term “court appointed

expert” is in fact defined as synonymous with

“impartial expert. An expert who is appointed

by the co u rt to present an unbiased opinion

. . . . F E D

. R. E VID . 706.” B L ACK ’ S L AW

D ICTIONARY 600 (7th ed. 1999).

This view is reinforced by leg islative history

. The House Committee report provides

that § 1920(6) is an “express reference to the

taxation of the compensation of a c ourt appointed expert, as permitted by Rule 706 of the Federal Rules of Evidence.” 43 H.R. Rep.

No. 95-1687, 95th Cong., 2d Sess. 13, reprinted in 1978 U.S.C.C.A.N. 4652, 4664. As

a result, the plain meaning of “court appointed

e xperts,” as used in § 1920(6), is a specif i c

reference to experts appointed under rule 706

and does not include guardians ad litem a ppointed under rule 17(c). C f. F ED

. R. E VI D

. 706; F ED

. R. C IV

. P. 17(c).

In contrast, the court posits that guardians

ad litem fit the ordinary, contemporary, and

common meaning of the term “court appointed

expert,” just because they “liaise with the court

and are charged with the important duty of

provid ing t heir insight as to how the judicial

process is or is not comporting with the best

interests of the minor.” Maj. Op. at 24.

That claim is unconvincing, for the same vague

description could be ap plied to a number of

parties that § 1920 otherwise references by

name.

For example, interpreters are selected and

appointed by the “presiding judicial officer” at

trial, and there is no question but that they apply their skills toward a discrete task that i s

43 The majority dismisses that statement

in a footnote, arguing that t he inclusion of “court

appointed experts” in § 1920 was such an afterthought that any explanation for its inclusion is

presumptive ly unreliable. S ee Maj. Op. at 24-25

n.13. That obser vation leads, however, to the inverse of the majority’s conclusion. If indeed Congress paid li ttle heed to its decision to include the

fees of court appointed experts in § 1920, it is far

more likel y that the term is used in a familiar, as

opposed to novel, way.46

essential to fair judicial administration. C f. 28

U.S.C. § 1827. The same is true of court reporters. Federal law provides that “[e]ach district co urt of the United States . . . shall appoint one or more court reporters,” 28 U.S.C.

§ 753, and theirs is certainly a unique skill that

is applied to a discrete problem in t rial management.

Yet, despite the “expert” status of reporters

and interpreters under the majority’s new rule,

their fees receive i n dividualized mention in

§ 1920(2) and (6). The majority’s reasoning

therefore ignores the maxim that courts should

avoid an interpr etation of a statute that “renders some words altogether redundant.” G ustafson , 513 U.S. at 574. 44

Accordingly, it takes something more than

a court appointment and responsibility over an

“important duty” to qualify as a court appointed expert within the meaning of § 1920(6). In

this regard, it is t elling that an ad litem need

not even be an expert to qualify for appointment under rule 17(c).

“Qualification cannot occur in guardian ad

litem situations because no recognized area of

gene ral expertise with regard to ‘custody’ or

‘child placement’ exists.” R. Lidman & B.

Hollingsworth, The Guardian ad Litem i n

Child Custody Cases: the Contours of Our

Judicial System Stretched Beyond R ecognition

, 6 G EO

. M ASON L. R EV

. 255, 275 (1998).

No matter how valuable are the ski lls possessed by a n a d litem

, the legal system does

not generally refer to them as “experts.”

I cannot presume that the lone exception to

this practice is Congress’s choice of the phrase

“court appointed ex p erts” in § 1920(6), a

phrase that h as a far more natural 

### S S and limited 

### SS connotation as a reference to rule 706

experts. 45 H owever valuable or important the

duties of an ad litem are, they do not autom atically make someone appointed to perform that

function a “court appointed expert.”

The majority’s interpretation also violates

the interpretive canon that “where gen eral

words follow specific words in a statutory

enumeration, the general words are construed

to embrace only objects similar in nature to

those ob j ects enumerated by the preceding

specific words.” W

ash. State Dep't of Social

& Health Servs v. Guardianship Estate of Keffeler

, 537 U.S. 371, 384 (2003). Section 1920

is quite specific in providing for the taxation of

costs incurred by a particular individual: The

clerk, marshals, court reporters and interpreters are all specifically provided for. Moreover,

these descriptions refer to the officials’ job

titles, not merely to the attributes they bring to

that position 

### SS

the list is, in other words,

taxonomical, not descriptive.

44 The majority also sweeps into its fold

m asters appointed under rule 53, even though the

rules independently provide a means for their compensation. See F ED

. R. C IV

. P. 53(h). 45 At oral argument, the ad litem disclosed

that this was his first time serving in that capacity.

That he did so competently only underscores the

fact that an ad litem can be a relative novice, and

yet still satisfy all the requirements of the job.47

Against that backdrop, the ordinary presu mption is that the phrase “court appointed

expert” is a similarly specific reference to the

title of a court o fficial, not a broad description

of the skill set possessed by an individual who

serves the court. It means the very persons

who ordinarily would be referred to as “court

appointed experts,” not those who were app o int ed by the court and generally could be

described as poss essing some measure of expertise. Because rule 706 experts ordinarily

are referred to as “court appointed experts,”

they fit within the statute; guardians ad litem

appointed under rule 17(c) do not. C f. F ED

. R.

E VID . 706; F ED

. R. C IV

. P. 17(c).

B.

Even if th e majority correctly holds that

guardians ad litem could be “experts” within

the meaning of § 1920(6), it would be absurd

to apply that holding to the present case. I do

not mean to denigrate the services of the a d

litem in this case, who, by all accounts, performed his job competently and diligently.

Nevertheless, the circumstances of his app oint

ment a s an a d litem fall far short of anything

resembling the qualificat io n and appointment

of an expert.

The Gaddises originally moved for the appointment of an a d litem and recommended

that this person be designated to serve in that

capacity. Their summation o f his qualifications reads, in its entirety:

Plaint iffs would respectfully request that

attorney George Bean be appointed as Ad

Litem for the Minor. Mr Bean is familiar

with the general facts of the case and has expressed his willingness to serve as ad

litem pending approval by the Court.

The possession of a general familiarity with a

subject, and a willingness to serve, do no t

make someone an expert in that field. Because

this particular ad litem possessed no expertise

and was not appointed to be an expert, there is

no basis for the majority’s conclusion that his

fees may be taxed against an adverse party on

the theory that they are costs incurr ed by an

“expert.”

C.

The majority asserts that this “alternative”

holding exists free and clear of any sovereign

immunit y concerns, because a finding that

guardians ad litem a re enumerated within

§ 1920 is tantamount to a fin ding that the

govern m ent has waived its immunit y in

§ 2412(a)(1)

. See Maj. Op. at 25. That is

only half right. The court i s correct to note

t hat the EAJA waives immunity for t ho se

items that are “en umerated in section 1920.”

28 U.S.C. § 2412(a)(1). But, what the majority fails to acknowledge is that its opinion is as

much an interpretation of § 2412(a)(1) as it is

of § 1920. This is because the majority must

identify the meaning of the words “as enumerated in section 1920” before find ing that the

government has waived its immunit y for the

taxation of costs.

As a result, the majority’s view tha t it can

adopt any possible interpretation of § 1920, no

matter how strained or t enuous, violates the

maxim that waivers of immunity are not to be

enlarged “beyond what the language requires.”

Nordic Village

, 503 U.S. at 34; Williams

, 51448

U.S. at 531. Even if it is possible to interpret

§ 1920 in the manner adopted by th e majority 

### SS because nothing in the statute conclusively forecloses its view 

### SS

that is not enough.

The r e is nothing in either § 1920 or § 2412-

(a)(1) that even comes close to compelling the

majority’s view that the g overnment has

waived its immunit

y from the taxation of

guardian ad litem fees as costs.

III.

I now com

e t o the majority’s third, and

final, explanation for its self-described “fair

and proper” result. Maj. Op. at 29. In this

n ext “alternative” version of its holding, the

majority throws all prior a rgum ents out the

windo w, and holds that the case is much ado

about nothin g. Because we have previously

reached the same result without co nsidering

the arguments presented by the government in

this appeal, we have obviously rejected them,

says the majority, so we shouldn’t waste time

today considering their merits. 46

The logic of that appro ach is overwhelming. Surely it is not better that we leave the

tough questions to a three-judge panel that did

not consider the question, than t o the collective wisdom of sixteen judges who have the benefit of having the issued briefed and orally

argued. The majority’s approach serves no

purpose b ut to absol ve the en banc court of

the responsibility for reaching th e relatively

obvious, if unpalatable, conclusion that the

government’s position is the correct one.

This final “alternative” holding rests on the

proposition that Crawford Fitting is inapposite

to the question whether guardian ad litem fees

may be taxed as costs. To reach its conclusio n, the majority first observes that we have

favorably cited the duPont li n e of cases for

several years after Craw ford Fitting and

thereby have upheld the right of district courts

to tax ad litem fees as costs under rule 54-

(d)(1). See Maj. Op. at 26 & n.16.

Further, the majority reasons

, C rawford

Fitting has no relevance to the present dispute,

because “[n]either the term ‘guardian ad lit em’

nor the phrase ‘guardian ad litem fees’ appears

anywhere in the Supreme Cour t ’s decision in

C rawford Fitting

. ” I

d. at 28. Lastly, the

majority re asons, there are a variety of states

in which “state courts applying their respective

state statutes” have found that ad l item fees

are taxable items of cost; as a result, federal

statutes must provide for the same result. Id.

The only inference to be drawn from t he

fact that our recent cases have taxed ad litem

fees without mentioni n g Crawford Fitting

, is

that the parties in those cases did not make the

same argument t hat the government has put

forward here. Because D ickerson

, 280 F.3d at

478; Lebron

, 279 F.3d at 332; and Gibbs

, 210

F.3d at 506, make no mention of C rawford

Fitting

, they do not stand fo r the proposition 46 See Dickerson v. United States , 280

F.3d 470, 478 (5th Cir. 2002); Lebron v. United

States

, 279 F.3d 321, 332 (5th Cir. 2002); Gibbs

v. Gibbs

, 210 F.3d 491, 506 (5t h Cir. 2000).

Those cases rely entirely on duPont

, and they

neither discuss the potential impact of Crawf o rd

Fitting on duPont

nor address the issues raised in

today’s opinion.49

that the governme nt ’s arguments based upon

that case are without merit. To the contrary

, the only significance of those cases is that they

bound the original panel in this case to a result

that could not be squared with Crawford Fitting . In other words, we took thi s case en

banc to consider whether those decisions are in

error; it is an insuffici ent answer merely to

observe that those panels reached a dec ision.

Likewise, there is no significance to the fact

that Crawford Fitting fails to mention the term

“guardian ad litem .” This is because the case

creates a rule of exclusion, not inclusion. In

Crawford Fitting

, the Co urt specifically rejected the view that “§ 1920 does not preclude

taxatio n of costs above and beyond the items

listed,” as well as the view that “Rule 54(d) is

a separate source of power to tax as costs

expe n ses not enumerated in § 1920.” C rawford Fitting , 482 U.S. at 441.

Instead it held, in no uncertain terms, that

costs are taxable under rule 54(d) only if they

a re among those items that Congress spe cifically enumerated in 28 U.S.C. § 1920. Indeed,

“§ 1920 defines the term ‘costs’ as used in rule

54(d),” and “no reasonable reading of these

prov i sions together can lead to [the] conclusion” t hat items of cost may be taxed even

though th ey are not enumerated in § 1920. 4 7 Id. That the Court reached this result in the

context of finding that expert witness fees may

not be taxed above the amount specified in 28

U.S.C. §§ 1920 and 1821(b) is of no moment.

If the Court instructs lower courts that they

may tax only the six items listed in § 1920, and

then holds that they may not tax a seventh

it em, we are bound to apply that decision t o

say “no r t his eighth, nor this ninth, nor this

tenth item either.”

Outside the guardian ad litem context, we

have applied Crawford Fitting to hol d that a

federal district court may not tax, as costs,

expenses incurred in preparing videotaped depositions, because that item i s not found in

§ 1920’s list. Mota v. Univ. of Tex. Houston

Health Science Ctr.

, 261 F.3d 512, 529-30

(5th Cir. 2001). Likewise, video technician

fees are not taxable under § 1920, nor are the

producti on of ‘blow-ups’ of exhibits. Coats v.

Penrod Drill i ng Corp.

, 5 F.3d 877, 891 (5th

Cir. 1993). In the closest analogy to the

present case, we held that a mediator’s fees are

not covered by § 1920 either and, as a result,

may not be t axed as costs i n the wake of

Craw ford Fitting

. Mota , 261 F.3d at 530. 48

The majority also errs in claiming tha t i ts

conclusion is reinforced by the practice in state

courts. Its own citations reveal that a d litem

47 Any doubt concerning that result is

rem oved by the subsequent statement, in W

. Va.

Univ. Hosp., Inc. v. Casey , 499 U.S. 83, 86

(1991), that in Crawford Fitting the Court “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.”

48 See also Brisco-Wade v. Carnahan

, 297 F.3d 781, 782 (8th Cir. 2002) (holding that §

1920 does not authorize taxing mediation fees as

costs).50

fees are taxable costs in those states only because state statutes or procedu ral rules specifically pro vide for that result in a way that

the federal rules and statutes do not.

As I have already shown, the Alabama,

Mississippi, North Carolina, Tennessee, and

Texas procedural rules contain specific provisions stating that ad litem fees may be taxed as

costs. In addition, the majority relies on several state stat u tes, evidently in the hope that

they will compare favorably to § 1920. They

do not. The Illinois statute cited by the majority provides: “A guardian ad litem o r special

administrator is enti

t led to such reasonable

compensation as may be fixed by the court to

be taxed as cost s in the proceedings and paid

in due course of

administration.” 755 I L L

. C OMP

. S TAT

. A NN

. 5/27-4 (West 2004). Similarly, the M ichigan statute relied on by the

majority provides: “The guardian ad litem

m ay be allowed reasonable compensation by

the court appointing him, to be paid and taxed

as a cost of the proceedings as directed by the

court.” M ICH

. C OMP

. L AWS A NN

. § 600.-

2045(2) (West 2004).

All of these states expressly provide for the

compensatio n o f guardians a d litem as a taxable court cost, s o met hing federal law flatly

does not do. “[I]t is a general rule that in actions at law , as distinguished from suits in

equity, costs may not be allowed in the absence of statute or rule of c ourt authorizing

such relief.” Van Ingen, s upra

, 30 A.L.R.2d

1148 § 2. “[I]n many jurisdictions the courts

have been expressly authorized by statute to

tax as costs fees for the services of guardians

ad litem.” Id. It is up t o Congress to decide whether

guardian ad litem fees may be taxed as costs.

In its present form, the statute Congress ena ct ed to address that topic fails to enumerate

guardian ad li t em fees as a taxable item of

cost, and, as a result, ad litem fees may not be

taxed under rule 54(d), any more than can the

expenses disallowed in Mota

, Coats

, and Brisco-Wade . If Congress chooses, it can fix this

result by amending § 1920; unless and until it

does so, Crawf

o rd Fitting precludes district

courts from taxing guardian ad litem fees.

Although I will not repeat all the arguments

I make in part I.B, supra

, sovereign immunit y

also bars the result advocated by the majority

in this “alternative” holding. This would be so

even if Crawford Fittin g had never been decided, or had been decided in a manner consistent with that case’s dissenting opinion and

tod ay’s majority opinion. Regardless of the

courts’ power to tax costs under rule 54(d)(1),

the government has waived its immunit y from

costs only as enumerated in § 192 0. S ee 28

U.S.C. § 2412(a)(1).

IV.

One sentence in the majority opinion sums

up the real reason for its decision to affirm the

district court:

While we recognize the underlying treatment the Supreme Court gave to the interplay between Rule 54(d) and § 1920 in

Craw ford Fitting

, w e are reluctant to and

thus do not apply any

such proscri pti on51

here to the taxation of gua rdian ad

litem fees as costs . . . .

Maj. Op. at 26 (emphasis added). Reluctance

to reach a result the majority perceives as unpalatable is no excuse for ignoring controlling

Supreme Court pre c edent or for re-writing

rules and statutes. Those powers properly lie

with others. I therefore respectfully dissent.