John G. Roberts, Jr.: We will hear argument next in Case 10-1472, Kouichi Taniguchi v. Kan Pacific Saipan, Limited. Mr. Fried.
Michael S.  Fried: Mr. Chief Justice, and may it-- please the Court: Our brief licks -- lists six categories of authority demonstrating that the work of an interpreter under 28 U.S.C. section 1920(6) is limited to spoken communication. Primary among these is the Court Interpreters Act itself, whose central provisions afford simultaneous or consecutive spoken interpreter services. When--
Sonia Sotomayor: Can I make sure that I understand the extent of your argument? Are you saying that it's interpretation, oral interpretation, just in the courtroom?
Michael S.  Fried: --Well, Justice Sotomayor, I think that it's a -- that there is a textual ambiguity in the statute about the extent of covered spoken interpreter services. One could argue it either way, and we don't -- I am happy to proceed under either assumption. But what is clear is that, however far it extends within the area of spoken interpretation, document translation is--
Sonia Sotomayor: I -- I have to say that if you read it the way you do, then what you are suggesting is that for appointed experts, they only get recompensed for the time they're testifying, because that's the only time they spend in court.
Michael S.  Fried: --Court-appointed experts, Your Honor?
Sonia Sotomayor: Yes.
Michael S.  Fried: I think the legislative history of that seems to indicate that that provision was actually inserted into 1920(6) for a separate housekeeping reason, because it parallels Rule 706 of the Federal Rules of Evidence, which was a preexisting rule addressing court-appointed experts, and simply put it into the enumeration.
Sonia Sotomayor: But court experts get-- a -- get paid for their prep work.
Michael S.  Fried: Yes, Your Honor. I -- I think that -- that that may well be the case. But I -- I think that the--
Sonia Sotomayor: Could I -- one further question.
Michael S.  Fried: --Of course.
Sonia Sotomayor: I take all your arguments, but I read the common dictionary and there is no question that the primary meaning of "interpreter" is interpretation of oral languages. But the dictionary is broad enough to include translation work as well. Given that the courts for 70 years have been awarding, most of the them -- except for I think the Seventh here, virtually every court over a 70-year period has been awarding translation fees as -- as authorized; why shouldn't that be enough for us?
Michael S.  Fried: Well--
Sonia Sotomayor: Meaning, if the dictionary term is broad enough and that's what the courts have been doing and the world hasn't crashed, despite one case where a large amount was given -- your adversary points to the fact that most of the translation fees tend to be fairly reasonable -- why should we muck with what works?
Michael S.  Fried: --Well, Your Honor, I think that--
Sonia Sotomayor: I think I am drawing -- I am drawing from ways that my colleague next to me usually asks a question. [Laughter]
Michael S.  Fried: --Your Honor, I think the primary reason why the Court should -- should not adopt that is because it's -- it's inconsistent with the text.
Antonin Scalia: It's wrong is your answer, right?
Michael S.  Fried: Yes, Your Honor. And -- and it's also worth noting that the courts -- none of the courts of appeals who have adopted this construction of 1920(6) have considered or addressed our primary arguments in this case. They haven't addressed the uniform professional literature addressing this -- this topic, the dictionaries in their aggregate, the Administrative Office's interpretation of this statute, the consistent congressional distinction between written translation and spoken -- spoken interpretation that runs throughout the code.
Elena Kagan: Just out of curiosity, why do you think that all these courts just took for granted the opposite reading?
Michael S.  Fried: Well, Your Honor, I'm -- I'm -- I'm not sure that I have a -- a good answer to that. I -- perhaps that they weren't presented with some of these -- these arguments and didn't have the opportunity to consider them.
Antonin Scalia: Perhaps it was Dr. Johnson's answer when a lady pointed out an error in his dictionary and his answer was: "Stupidity, madam, sheer stupidity. " [Laughter]
Michael S.  Fried: I think -- I think, Your Honor, that -- that Kan Pacific disputes very little of -- of our central argument. Their discussion--
Stephen G. Breyer: There are -- there are lots of regions of the country, Puerto Rico for example, where there are vast numbers of documents that have to be translated if you go into Federal court, not necessarily in the Commonwealth court. That's expensive to people. And they might have thought for a long time, while that expense won't go away, it's at least better to have it paid by the loser than to have it paid by the winner. So that's been the common practice. I don't think that's a foolish approach. And you can find language in this, which is to go back -- to go back to Justice Sotomayor--
Michael S.  Fried: --Well, Your Honor, I think that -- again, the -- the best reason to reject that view is because it doesn't make a coherent whole of this statute. These provisions operate together in a uniform set of -- as a uniform set of policies for addressing a common subject. And the way they -- these provisions interact in broad strokes that makes perfect sense in our reading is that in the -- in the primary class of cases that motivated the passage of this statute, namely cases brought by the government where there were significant constitutional confrontation clause concerns about criminal defendants not understanding the spoken proceedings, in those core class of cases the Congress elected to pay for spoken interpreter services directly in the first instance. Now, in the non-core class of cases litigation, private civil litigation, the Congress elected not to pay for these services, but in 1920(6) to facilitate them in the lesser manner of providing that a party that incurred these expenses could recover them at the end of the case if it won.
Stephen G. Breyer: --What do you think of the -- I mean, the First Circuit dealt with this, which deals a lot with Puerto Rico, and it felt that this fell within the idea of fees for exemplification, which is certifying the document. And in fact, to certify a document that comes into the Federal court in San Juan, you have to have it translated very often. And so, the translation cost is at least consistent with the idea there of trying to -- you may -- you don't have to -- you may impose the cost on the loser.
Michael S.  Fried: Well, Justice Breyer, there was actually a specific provision in this bill, in a prior version of this bill that addressed the context of Puerto Rico. And the significance of that provision is that when the Congress was addressing written translation, which was part of the -- part of that provision, it specifically used the word "translation" to refer to that. And this just, again, confirms that the usual congressional practice of differentiating between these terms in -- in statutes generally was fully applicable here, that the Congress knew the difference between these terms, used them appropriately, and the fact that having removed that -- that provision from the statute, the statute as passed contains only the words "interpreter" and "interpretation", and no forms of "translate" just again reaffirms that -- that the ordinary meaning of these terms should apply.
Ruth Bader Ginsburg: What of a document that is -- that's read out in open court and the document is a contract in another language, and the interpreter -- the witness presents the document and the interpreter interprets it?
Michael S.  Fried: Your Honor, the professional literature addresses this as sight interpretation or sight translation, and it's uniformly recognized to be a species of interpretation. It occurs -- the -- the interpreter speaks aloud in the presence of the audience being communicated to in the course of a spoken proceeding.
Ruth Bader Ginsburg: But what if the -- if the interpreter, being diligent, said, I'm going to have to translate this document in open court, I would like to have it in advance so I can be sure that my translation is going to be accurate, so that in fact the interpreter looks at the document and in in preparation for the trial translates it?
Michael S.  Fried: Well, Your Honor, I think that the preparatory work that occurred outside of court would not be compensable interpretation work. But when the -- when the interpreter returned to court and gave the oral interpretation of that document, that would constitute interpretation.
John G. Roberts, Jr.: But that -- but she's not interpreting it. She's already got the thing in whatever language, English, I guess. But I mean, she's not interpreting, she's reading the English translation.
Michael S.  Fried: That's true, Mr. Chief Justice. But the key reason why that would constitute interpretation is because the -- the interpreter is speaking aloud, communicating in the course of a spoken conversation to an audience who -- who doesn't speak English or--
John G. Roberts, Jr.: Oh, I misunderstood the hypothetical, then. I'm sorry.
Michael S.  Fried: --Perhaps I did, Your Honor. I apologize.
John G. Roberts, Jr.: I thought it was a situation where you have got a -- a -- a document in -- in, say, French and the person translates it, or interprets it -- I don't want to prejudge the issue -- and -- and then in English and then the person reads the English thing in -- in court. That's not interpretation at any point, is it?
Michael S.  Fried: Well, Your Honor, I think that the literature does typically class the in-court oral communication of its content as a form of interpretation. But any ambiguity on this point really -- really doesn't -- doesn't affect anything in practice. I mean, any sight interpretation occurs as a brief interval in a larger proceeding.
Anthony M. Kennedy: Well, is it true that as a matter of common usage, when we are talking about oral testimony in court we often use "interpretation" and "translation" or "interpreter" and "translator" somewhat interchangeably, but when we're talking about rendering a document into a -- into a different language, we generally talk about that as "translation". This is a matter of common usage. Do you think that's correct?
Michael S.  Fried: If I understand Your Honor correctly, yes. I think that the ordinary meaning of "translate" applies to the context of -- the communication of information in written documents. And it's -- it's discrete from "interpretation", which -- which is limited to--
Antonin Scalia: Well, you didn't understand the question.
Anthony M. Kennedy: That wasn't quite my point.
Michael S.  Fried: --I'm sorry.
Anthony M. Kennedy: My point was that I think we say -- in fact, in a Supreme Court case, we said in the Hernandez case, when we're talking about oral testimony in Court, we tend to use "translator" or "translate" and "interpreter" and "interpret" somewhat interchangeably. Is that correct?
Michael S.  Fried: I apologize, Your Honor. Yes, you can use the word "translate" generically. There's no question. Frequently in court, and I think out of court as well, that some people can use the word "translate" in a manner that doesn't differentiate between modes. Our point is that -- that double meaning doesn't apply to "interpreter", which has a single narrow meaning limited to spoken communication. And Kan Pacific's discussion of the dictionaries is limited to a single dictionary, Webster's Third. The majority of dictionaries categorically exclude document translation from the scope of--
Antonin Scalia: Webster's Third, as I recall, is the dictionary that defines "imply" to mean "infer"--
Michael S.  Fried: --It does, Your Honor--
Antonin Scalia: --and "infer" to mean "imply". It's not a very good dictionary. [Laughter]
Michael S.  Fried: --Well, the Court in the -- in the MCI v. AT&T case did indicate that. But -- but in any event, the -- on its terms, that definition supports our reading over Kan Pacific's because it does indicate, even as to that dictionary definition, that the most common meaning of the term is the meaning referring to spoken communications. And this Court frequently looks to the most common meaning for purposes of statutory interpretation, as it did in Mallard in construing the word "request", and in Ramsey in construing the word "envelope".
Sonia Sotomayor: Could we get back to the issue. In the legislative history of this provision, is there any indication that Congress explicitly rejected translation work from its coverage?
Michael S.  Fried: I can talk -- there's a -- the text does. The -- the text--
Sonia Sotomayor: Outside of the text. Is there a statement by one of the sponsors in the congressional bill?
Michael S.  Fried: --I'm not -- I'm sorry. I'm not sure that there's an explicit statement that I'm aware of in the legislative history. There's a lot of provisions in the legislative history which plainly presuppose that. And the Congress received professional literature from -- documents from the American Association of Language Specialists.
Sonia Sotomayor: Those are the other provisions that they passed with respect to--
Michael S.  Fried: Specifically with respect to costs, the Congress -- the House Report alludes to Rule 43(f), which is now 43(d), as a relevant preexisting rule. And of course, it's undisputed that Rule 43(d)'s cost provision is -- is limited to spoken communication of interpreters. So there is that in the history as well. But -- but I think that there's no doubt that under the text of the statute, subsection (k) the modes subsection, which appears at page 5a of the red brief appendix as it was initially passed, expressly says that the interpretation under -- under this section must be done by using methods that all agree are limited to spoken communication. Now, in the--
Sonia Sotomayor: --So if a lawyer sits down with an interpreter now in his office and says to the interpreter, "I can't pay for translation work. " "Now, you sit here and interpret what this letter says for me. " Is that what we're asking lawyers to do now--
Michael S.  Fried: --Not at all, Your Honor.
Sonia Sotomayor: --if we accept your reading?
Michael S.  Fried: No, Your Honor. That would not constitute interpreting, because it would not -- the interpreter would not be communicating between live parties in the context of a real-time proceeding.
Sonia Sotomayor: But you would say that might be different in a courtroom.
Michael S.  Fried: Well--
Sonia Sotomayor: Because the lawyer is communicating something live. It could be in the courtroom, but not outside.
Michael S.  Fried: --That -- that's correct, Your Honor.
Sonia Sotomayor: Is there something logical about this?
Michael S.  Fried: Yes, Your Honor, because in the courtroom, in the context of a live spoken proceeding, that satisfies all of the ordinary definitional elements of interpreting. But that's not the case in somebody's office in the presence of a single party and a written document. And -- and there's no question, Your Honor, that to the extent there's any ambiguity with respect to unusual examples, this is a distinction that's absolutely clear in the vast majority of real world incidents.
Ruth Bader Ginsburg: What about depositions? The translation would be of the spoken word, but it wouldn't be in court.
Michael S.  Fried: Well, I do think there -- one could potentially argue that spoken interpretation at a deposition isn't covered, in light of some of the dictionaries like Black's Law Dictionary, which indicates that the word is restricted to people who work in trial. But I certainly think that it could be argued either way, in a case where--
Anthony M. Kennedy: Well, what's -- what's your position? I -- I take a deposition in my law office and I have to have an interpreter there. Is that recoverable or not?
Michael S.  Fried: --I'm not sure we have a definitive -- I think you could argue it either way, Your Honor. It doesn't affect our case.
Anthony M. Kennedy: Well, how do you think it affects the way you read the statute? What do you think should be the result?
Michael S.  Fried: I think there's a reasonable reading that that should be covered. I think that's certainly -- we have no vested interest in opposing that.
Anthony M. Kennedy: Let me ask you this question: In the background here, is there some concern that we're going to have minor cases but with huge translation costs, and it would be simply unfair? And if the answer to that is yes, isn't that taken care of by the statutory direction that the Court "may" give costs?
Michael S.  Fried: Well, Your Honor, that sort of discretion demonstrably does not prevent the issuance of these large awards, because there have been a number of large awards issued notwithstanding that discretion.
Anthony M. Kennedy: Well, isn't that an abuse of discretion?
Michael S.  Fried: Well, not necessarily, Your Honor. The -- the district courts--
Anthony M. Kennedy: Well, I mean, in other words, if the court sees that the -- the cost of preparing documents into an English language is quite substantial in light of what's involved in the case, and it's just not fair to award them, can't that court in its discretion deny them, or is that not the way it works?
Michael S.  Fried: --That's the way it works, Your Honor. But I don't think that that discretion is sufficient to eliminate the deterrent effect that this court has recognized in cases like Farmer and Fleischmann, because it occurs at the end of the case, after a litigant has already decided whether to bring suit. The deterrent effect occurs ex ante when a risk-averse litigant has to decide whether to bring the case. But I -- I would just note that these sorts of policy questions, Your Honor, arise in the context of language that by its terms extends to interpreting and not translating. And we would say that the relevant policy question is simply whether there are sensible reasons to -- that Congress may have drawn a line where it did. And plainly, there are adequate reasons that these services, document translation services that were excluded, are potentially large and fall under the general principles that this Court has recognized are -- are presumptively not frequently avoided--
Sonia Sotomayor: I guess I'm -- I'm having a problem with they're "potentially large". Interpretive services are potentially large, although you claim that they don't -- they have sort of a terminus point. I've been in trials where we've had multiple languages simultaneously being translated to multiple defendants, with witnesses speaking even other languages. I was in the Southern District of New York. And fees there without translation, just for the oral courtroom work, sometimes went ahead for months. So potentiality's not the question. If you're talking about disproportionality, then that goes to the word "reasonable" in the statute, doesn't it? I mean, the Ortho case you point to, the court did sizably cut the translation fees. And more importantly, from the little I can tell, that was a huge patent case with a patent that was claimed to control 60 percent of a market. So I don't know that that was a small case by anyone's definition.
Michael S.  Fried: --Certainly, Your Honor. As to the difference, I mean, I'm not aware of -- under this statute, an interpreter's spoken interpretation award approaching anywhere near some of the larger document translation awards that have been issued. But nonetheless, I am not denying that there could be large interpreter awards in some cases. But the fact is that adding on document translation awards is additive. The sort of necessity review that would be necessary to police these document translation awards would be quite burdensome on the district courts. And in fact, the necessity standard is actually particularly problematic to apply to translations, Your Honor. Because the fact is you don't know what a document says until it has been translated. And the exercise of trying to go back and reconstruct ex ante what a -- whether a person was reasonably necessary in causing to be translated something that they didn't know what it meant is likely to lead to very subjective--
Stephen G. Breyer: Well, I haven't -- I was interested here that the amici on your side consists of some professors and the, I guess the trade associations of interpreters or translators, but the people who would have the financial stake in it, the defense bar, the plaintiff's bar in certain circumstances, have not filed any brief. And I tend, though not putting a lot of weight on it, to take it as a sign, along with the long period of time, that there hasn't been some tremendous financial problem. What evidence is there that there has been? I see a few cases, but in general.
Michael S.  Fried: --Your Honor, I am not at all suggesting that there has been a tremendous financial strain on the system. We are saying that this is a statute that, by its plain language, extends to--
Stephen G. Breyer: The plain language argument I got. But how many years has the great bulk of the court been going the other way?
Michael S.  Fried: --I'm sorry, Your Honor, I actually, I didn't hear the end of your question.
Stephen G. Breyer: How many years has, would you say, the great bulk of the Federal system been deciding this differently from the way you think it should be?
Michael S.  Fried: I'm not sure that it is the great bulk. I mean, there's been a significant disagreement--
Stephen G. Breyer: That's the bulk.
Michael S.  Fried: --Well, I think it's -- I think that it's increased over time.
Stephen G. Breyer: Well, when did all this rot set in, in your opinion. How long?
Michael S.  Fried: I'm not sure that I could pinpoint a date, Your Honor.
Stephen G. Breyer: When is the first one?
Michael S.  Fried: Your Honor, I'm not sure. I will have to find out while my adversary is arguing what the first decision was.
Sonia Sotomayor: As far back as 19 -- It was a district court. But it was as far back as the 1930s. Some in the '40s, some in the '50s.
Michael S.  Fried: Certainly it wasn't construing 1920(6) at that time, Your Honor.
Sonia Sotomayor: No, no. Clearly. But these awards have been common.
Michael S.  Fried: Your Honor--
Stephen G. Breyer: You have a case cited from 1812. I take it that's it?
Michael S.  Fried: --Certainly, Your Honor. Um, addressing--
Antonin Scalia: I thought -- I thought we were addressing not whether it's a good idea to give fees, but whether fees are payable under this particular statute, right? Which was enacted when?
Michael S.  Fried: --1978, Your Honor.
Antonin Scalia: 1978. That's not so long ago.
Michael S.  Fried: Absolutely correct, Your Honor. We agree. And the structural reasons are -- within the Court Interpreters Act itself are every bit as powerful as the ordinary textual indicia that support our reading. And in fact Kan Pacific's argument that the word "interpreters" should be assigned different meanings in different parts of the statute is -- is unsupported. Kan Pacific relies on what it characterizes as different language in section 2, which put in 1827 and 1828, and section 7, which put in the cost provision. And it notes that section 2 sometimes uses the broader phrase "interpreters in courts of the United States. " whereas section 7 uses the word "interpreters" alone. But Kan Pacific doesn't examine the context in which section 2 does and does not use that broader phrase. And those specifics really undermine any argument one might make along those lines. As originally passed in section 2, 1827 contains 26 occurrences of the word "interpreter", not counting the title. And of those 26 cases, 24 simply use the word "interpreter" by itself. So there is certainly at the very threshold no overarching pattern of usage distinction between them. More fundamentally, though, the substantive provisions addressing the use of interpreters by parties in these cases in 1827 do so without using that broader phrase. Subsection (d)--
Antonin Scalia: Do so without--
Michael S.  Fried: --I'm sorry, Your Honor. Without using the broader phrase "in courts of the United States. " Subsection (d) is the provision that -- that governs the use of interpreters in cases brought by the government. This appears at page 2a of the red brief appendix, and it simply provides that upon a determination of need, the services of an interpreter will be used in these cases. The only two provisions that use the phrase "interpreters in courts to the United States. " are subsections (a) and (b), which are both at 1a of the red brief appendix, and both of these provisions -- are addressing the scope of the Administrative Office's duties under the statute. And as such, it simply makes clear that, in keeping with the office's ordinary function, it's -- it's facilitating the work of the Federal courts and making clear that the offices -- and, for instance, certifying interpreters for the State courts. So nothing in this language suggests in any way that the -- that the word "interpreter" means something different in different places or that the services of an interpreter are viewed as embracing the same thing. So we think that a variety of indicia of meaning converge in this case to support the conclusion that 1920(6) is limited to spoken communication. If there are no further questions, I will reserve the balance of r. Himmelfarb.
Dan Himmelfarb: Thank you, Mr. Chief Justice, and may it please the Court: The word "interpreter" has two possible meanings that are relevant here, a broader one and a narrower one. The broader meaning is a person who translates from one language to another. Under this definition the terms "interpreter" and "translator" are used interchangeably.
Antonin Scalia: Have you ever seen a book, you know, translated from a foreign language, you know, "War and Peace", you know, and you are at the mercy of what we call the translator, and it says on the fly page, you know, "John Smith", comma, "Trans", period. Does it ever say "John Smith", comma, "Int", period?
Dan Himmelfarb: It is used in the narrower sense in that context, I think, Justice Scalia. The narrower meaning of "interpreter" is member of a profession that specializes in oral translation; and in that narrower sense, an interpreter is distinct from a translator, which is the sense you've just identified, which is a person who specializes in written translation. Our submission is that, as the great majority of courts who have expressed a view on this question have recognized, the broader definition makes more sense in the particular context at issue here. And we say that for a number of reasons. The first is that the basic purpose of translation in the litigation context is to make evidence intelligible to the parties and the court. Section 1920 reflects the congressional judgment that the cost of making evidence intelligible to the parties and the court can be borne by the losing party.
Antonin Scalia: No, it doesn't. It reflects that judgment only if you are right that "interpreter" means "translator".
Dan Himmelfarb: Well--
Antonin Scalia: I mean, you are begging the question. You could say that the one should embrace the other. But whether Congress thought that or not is mostly dependent on the language Congress used, isn't it?
Dan Himmelfarb: --Well, let me be as clear as I possibly can. I'm obviously not standing here saying we lose under the language, but it would be a good idea for the statute to cover written translation. That's not a legitimate enterprise for a court interpreting a statute. What I'm saying is that the text of the statute bears two -- permissibly bears two possible meanings. That being the case, it is a legitimate enterprise for the Court to say which makes sense, which is it most likely that Congress would have intended in this particular context?
Samuel A. Alito, Jr.: Why does your interpretation make sense? Shouldn't we view this against the backdrop of the American rule on fees, that each party generally bears its own costs and only in specific circumstances does the loser pay? Now, the taxation of costs is a very narrow concept. What is the difference between a case in which a lot of documents have to be rendered from one language to another prior to the court proceeding and a case in which there is a mass of scientific evidence that has to be interpreted by a scientist? Or financial evidence that has to be interpreted by an accountant? In those instances, the losing party doesn't pay for the winner's expenses, does it?
Dan Himmelfarb: Well, let me -- let me address the first part of your question first, which is essentially, as I understand it, isn't there a background principle that says costs don't get taxed? I actually think insofar as far as tax -- costs are concerned, as distinct from attorney's fees, the background principle actually goes the other way.
Samuel A. Alito, Jr.: Back up. Costs get taxed, but costs are very narrow and they are a very small part of the expenses of a party litigating a case. Isn't that -- isn't that true?
Dan Himmelfarb: I think ordinarily that is true, but I don't think that it follows, it follows in any way, that there is some sort of tie-breaking interpretive canon that says when you are interpreting the costs statute, some version of which has been in effect since the middle of the 19th century, if you are unsure about the scope of it, that you err on the side of narrowness rather than breadth. I just don't think there is any such interpretive principle.
Elena Kagan: Well, aren't you asking for an interpretive principle that errs on the side of breadth rather than narrowness?
Dan Himmelfarb: No, we don't.
Elena Kagan: Why don't we just ask ourselves what's the most common, what's the best reading?
Dan Himmelfarb: Well, I think you obviously have to start there in this case, as you do in any statutory case; and our submission is that you have two possible ordinary definitions. You have two possible common usages.
Elena Kagan: But the dictionaries themselves tell us that one usage is far more common than the other.
Dan Himmelfarb: I mean, I guess I just have to dispute that. We have Webster's, which, you know, Justice Scalia's view notwithstanding, is viewed by many people as an authoritative dictionary of English language. We have got Black's Law Dictionary which I think everyone agrees is the leading law dictionary, which provides as a definition of "interpreter" the broad definition that we advocate here. To be sure--
Antonin Scalia: Well, I guess Black's Law Dictionary which -- the editor of it is a -- is co-author with me, so I -- I feel obliged to spring to his defense-- [Laughter] Since it is a law dictionary, presumably it ought to have taken into account the cases you are referring to, many of which use the word in -- in this sense, right?
Dan Himmelfarb: --That's true.
Antonin Scalia: Like Garner.
Dan Himmelfarb: That's absolutely true, and just as a dictionary, a law dictionary will take those cases into account, I think it's ordinarily presumed that Congress is taking into account the cases, too, and it's taking into account dictionary definitions as well.
John G. Roberts, Jr.: One -- one of the things that concerns me is the impact of -- of cost allowance on the normal litigation incentives. An interpreter in court is one thing. When you suddenly get a situation where the costs could be quite large, particularly in a -- in a disparate way, not necessarily shared by both sides; somebody goes into court; they know they are going to have to -- if they lose, they will have to pay the interpreter this; and the other side comes in and says well, we think we need to submit this 10,000 pages of -- of documents, which will have to be translated and by the way, if you lose you are going to pay for that. In other words, it is a much more variable element of costs than the interpreter.
Dan Himmelfarb: I -- I'm not sure that's true. I think in large litigations where you have many, many days of trial and potentially pretrial proceedings, you could have very large oral translation costs. Where there are many depositions, you could have large oral translation costs. But even if I were to accept the premise of your question, it seems to me that the way these costs get controlled is through the exercise of district court's discretion, not to tax every -- the cost of translating every document. The Fifth Circuit, which is one of the--
John G. Roberts, Jr.: So what -- so what goes into the exercise of that discretion?
Dan Himmelfarb: --Well, typically the criteria for -- I should add, the criteria for taxing costs of every sort, not just interpreter costs and not just document translation costs, are essentially thought to be necessity and reasonableness. So in connection with document translation costs, the Fifth Circuit has suggested that the way to tax them, the appropriate way to tax them might be just to tax the cost of translating headings of foreign language documents, which should be sufficient to let the lawyer know whether this is a relevant document that might bear further translation, and then only the documents that really turned out, based on the translation of the heading, to have some significance to the case. So that's just one example of the way the discretion gets exercised.
Ruth Bader Ginsburg: Mr. Himmelfarb, in section 1920, there are two provisions that specify costs necessarily obtained for use in the case. And the interpreter provision doesn't have that qualification, doesn't say necessarily obtained for use in the case.
Dan Himmelfarb: That -- that's true. For -- for--
Ruth Bader Ginsburg: You are asking to read interpreter means to mean translator as well, and to import into sub (6) "necessary for use in the case. "
Dan Himmelfarb: --The necessity limitation in subsection (6) as with other subsections that don't specifically use the word 54 of the Federal Rules of Civil Procedure, essentially make this a discretionary call for the district courts. Necessity has long been recognized as one of the components of that discretionary determination. The reason we say it doesn't make sense to have the narrower definition of interpreter be the one that Congress enacted is that written document translation can be and often is every bit as important as oral translation. In many cases, it could be more important, in a contract case, for example.
Stephen G. Breyer: What do you think on the -- I guess nobody wants to defend this argument, including you, but the First Circuit and several others did look to the provision which permits the taxing of costs with the making of specific exemplifications or official documents, for the costs of making copies of any materials obtained for use in the case. Now, if you are going to make a copy for use of the case of something in Japanese, you are going to have to turn it into English. So they included that as part of the costs of making copies of the materials and documents for use in the case. Now, which is discretionary; it's whether you do or whether you don't. But that's how several courts could read it. I am just wondering, that didn't strike me as so obviously wrong. Maybe it's obviously--
Dan Himmelfarb: Well, I mean, I suppose it goes without saying that we would rather win under subsection (4) than lose under subsection (6). There are--
Stephen G. Breyer: --I am sure you would like to win on any subsection. [Laughter]
Dan Himmelfarb: --That's true, absolutely true. There are some courts that have suggested that document translation fits under subsection (4). I think those that have done so have tended to do it -- tended to do it before section (6) was added in 1978. We haven't--
Stephen G. Breyer: All right. So the history is that prior to '78 a serious number -- some number of circuits said you can get the translation paid for under -- as -- as being necessary to create a copy that is usable in court. Then Congress passes, this knowing of those cases in principle, and then there is a shift after Congress passes this, and then the majority of courts say, all right, this is the provision that permits it. Is that an accurate statement?
Dan Himmelfarb: --I think that is accurate. Before 1978 some of the courts that taxed document translation costs I believe also relied on their inherent authority, which at the time was thought to be a permissible ground for taxing costs.
Stephen G. Breyer: Is there anything in the history of the '78 statute which suggested that Congress didn't want these taxed?
Dan Himmelfarb: Absolutely not. There is -- there is frankly nothing in the legislative history of the Court Interpreters Act really that bears on this issue one way or another. There is a lot of legislative history on which Petitioner relies, but it's all addressed to section 2, which is a separate provision which deals with a separate subject, which is the appointment of interpreters in cases initiated by the United States.
Antonin Scalia: So if there is no legislative history -- there's -- legislative history on the other side either, right? Saying that we -- we mean this to include--
Dan Himmelfarb: No, that's right. We don't -- we--
Antonin Scalia: --So, absent legislative history, I guess we have to rely on the words of the statute, right?
Stephen G. Breyer: That means you don't have to look at this.
Dan Himmelfarb: --I guess I just go back to where I started, which is that we think under dictionary definitions and under common usage there are two permissible meanings of interpreter.
John G. Roberts, Jr.: Well, there are two -- there may be two permissible, but you don't dispute the fact that it is more natural and common to speak of someone interpreting oral communication and someone translating written, correct?
Dan Himmelfarb: I don't -- I -- I think I would dispute it. I don't know whether one is more common than the other in any meaningful way. It may be slightly more common to use it in its narrower sense to refer to a member of a profession, but it certainly is common enough that you have district judges from all over the country in written opinion just sort of matter-of-factly talking about the people who translate documents as interpreters.
Elena Kagan: Well, how about in the U.S. Code? Is there any place in the U.S. Code where the word interpreters clearly encompasses written translators?
Dan Himmelfarb: I'm not aware of any. There aren't -- there -- I frankly don't think there are that many places in the United States Code where the term "interpreter" is used other than in its sort of obvious, narrowest sense based on the context of a statute. So, for example, a number of statutes talk about funding translators and interpreters who are not citizens of the United States. It seems to us that in that context what Congress is getting at is the interpreter and translator in the narrower sense of members of a profession.
Elena Kagan: So in every other case where the U.S. Code uses the word "interpreters" means only oral translators, and that's the obvious way to use the word, but in this case we are supposed to reach a different conclusion?
Dan Himmelfarb: Justice Kagan, I would say this, in every other provision of the United States Code in which the interpreter -- the word "interpreter" is used, either it's not clear whether it includes document translation or the context is such that it strongly indicates that it's limited to oral translation. And neither of those situations obtains here, in our view.
John G. Roberts, Jr.: Let me rephrase your answer a different way. You are not -- you don't know of any situation in the U.S. Code where translators -- or the interpreter means translator?
Dan Himmelfarb: I am not aware of any other provision in the United States Code.
John G. Roberts, Jr.: And you checked every one, so there is none, right? [Laughter]
Dan Himmelfarb: There is -- there is none where it is clear that it covers document translation. There are -- there are State statutes which we have cited which use the term "interpreter" to -- to clearly cover document translation, and we cite them in our brief.
Samuel A. Alito, Jr.: Somebody did a computer search in the database of, let's say, newspaper articles and magazine articles for use of the term "interpreter" in relationship to a foreign language. And let's say you look at 1,000 hits. How many of those do you think would use the term "interpreter" to refer to rendering a written document from one language to another?
Dan Himmelfarb: I would not be at all surprised if it was more than 50 percent of the hits that used it in its narrower sense.
Sonia Sotomayor: You are like daring Justice Alito to go do this now. [Laughter]
Dan Himmelfarb: However--
Samuel A. Alito, Jr.: How much would you bet? [Laughter] If you bet me enough, I will look at 1,000, I would be surprised if it's 2 percent.
Dan Himmelfarb: --I couldn't venture a guess, and I would rather not bet you. [Laughter] I do want to say something about the concept of sight translation, which is something that my friend Mr. Fried averted to. Sight translation is a hybrid endeavor. It is the oral translation of written documents. One of the reasons we think that the broader meaning of interpreter makes more sense in section 1920 is that it can't really account in any sensible way for sight translation. In this case, for example, our counsel -- Kan Pacific's counsel took Taniguchi's deposition. And to prepare for the deposition, he reviewed -- he had to review some contracts which were written in Japanese and some medical records which were written in Japanese. Now, under our view, having those documents translated in writing to prepare for the deposition, would result in a potentially taxable cost. Under Taniguchi's view, they wouldn't. But it sounds like under either party's view, if instead of handing those documents off to a document translator to have them translated in writing, he had sat down in his law office with a member of the interpreter profession and said here's a box of documents, please, tell me what they say. That would potentially be a taxable cost. That seems to me to be a very odd result and one that's--
John G. Roberts, Jr.: It's an odd result because nobody's going to do it. Because at that point you don't know who is going to get saddled with the cost. So it wouldn't be likely that you would do something that would increase the costs, would it?
Dan Himmelfarb: --Well, I don't know that it would increase the costs. It may be cheaper to use an oral translator -- an -- an oral translator as opposed to a written document translator. And there might be a variety of reasons why you would choose to use one or another, time constraints, the importance of the particular document, what have you. But I don't think that it's likely that Congress would have thought that the potential taxability of the translation--
Antonin Scalia: Is it -- is it clear? Does anybody contend -- does the other side contend that the use of a viva voce translation outside of court is covered by the meaning of interpreter here. I assume the interpretation here meant interpretation in the oral proceeding that is the trial. And you are -- you are saying that if we hold against you, interpretation will still include all oral translations outside of the trial.
Dan Himmelfarb: --Well, I think every court that's ever thought about this has found that deposition -- oral translation at deposition--
Antonin Scalia: At deposition, which I consider part of the -- part of the trial process, but not -- not in the lawyer's office where he asks somebody to sit down and -- and read this document to me.
Dan Himmelfarb: --Well, there's -- I don't see any basis in the statute or, frankly, in the practice of translators or interpreters of drawing that line in that particular place. And as far as the question of where Taniguchi would the Court -- Court draw its concern, I think that is a very hard question to answer, because he has moved back and forth so many times on that. His briefs offer several different -- several different narrower definitions of interpreter, sometimes saying it's the oral translation of oral speech. Sometimes saying it's the oral translation of any language, whether it's oral or written. Sometimes saying it's limited to in-court interpretation. Sometimes it's saying it's not. That, it seems to us, is a very good reason for adopting the broader interpretation. It seems very unlikely that Congress would want courts to get into these extremely complicated and, frankly, unprincipled line drawing exercises.
Elena Kagan: I don't know, Mr. Himmelfarb. Why is this any -- any different from than any other case in which we draw the line, and we find that the result of drawing the line is that we have created some close cases, cases that are near the line. So, you know, just to give you an obvious example, the fact that there are some few minutes in every 24-hour period where's it's hard to say that something is night or day does not mean that there is no night and that there is not day. And that seems to me what the question is here. Here you can think of some hard cases, but they are just that, they are marginal cases.
Dan Himmelfarb: I think -- I think line drawing is sometimes a necessary exercise because the text of the statute compels you to do it. Our submission is that the text of this statute doesn't compel it, because you have a readily available alternative interpretation which doesn't require any sorts of these line drawings. And as far as whether this is sort of a -- an outlying -- the examples I give are outlying oddball circumstances goes, I don't think they are. Sight translation, for example, is a core function of interpreters and translators alike. And I guess the only other point I would say -- make about sight translation, my friend, Mr. Fried suggested that that -- that is something that could only be covered if it takes place during the course of live proceedings, which I think is yet another narrowing of the word "interpreter". But as far as I am aware, most sight translation is little, if any, sight translation actually occurs during the--
Stephen G. Breyer: I accept the following, that there was a history basically giving -- doing what you want before the statute, but the statute, nobody thought, was going to do that history, that statute is capable of being translated but it is a most natural thing. And so, the question is, do we take -- go with the smaller capabilities and leave well enough alone or do we say, gee, that is just too hard to translate that -- to interpret the statute that way. Have you got any other examples in the law? I mean, can you think of an example in the law which I have been trying to think of where there was a history of doing something? The statute comes along that makes it a little tougher for the judges to do it. And then the court says either, sorry, too tough now, or it says let sleeping dogs lie.
Dan Himmelfarb: --Well, I think -- I mean, I think it is an important point. And this goes to the question of, you know, whether it's difficult for district courts to make a determination of whether a particular document translation should be taxed, which is one of the arguments on the other side. I think the history of this is strong evidence that it's not difficult. Courts have been doing this, certainly, since 1978 when this provision was added and even before then. And they haven't had any evident difficulty in deciding whether to tax documents in its document translation, and if so, how much. So I think the -- the history certainly bears on the case in that respect. A word--
Sonia Sotomayor: Justice Breyer is asking, can you think of an example where words are not on their face plain, and the court has looked to the practices that have been impugned into that word incentive and we decided that they will be accepted in the way that practice has given them meaning?
Dan Himmelfarb: --I can't think of any case off the top of my head, and I think it's true that this case is a little bit different, because insofar as courts were taxing document translation costs before 1978, they were relying on something other than the word "interpreter". So it may be a stretch to say that when Congress chose to use the word "interpreter", it was necessarily incorporating what courts had previously done. But I don't think it's entirely irrelevant that this has been done for a long time, and I think it's not unfair to presume that Congress would have been aware of that. The Court Interpreters Act has two main provisions as relevant here. There's section 2, which is really the more -- the main provision -- and then section 7, which became 1920(6) in Title 28, which is the provision at issue here. An important part of Taniguchi's submission is that section 2 is limited to oral translators, and therefore, it should follow that section 7, the provision at issue here, is likewise limited to oral translators. And our main submission on that -- on that question is that Congress actually used different language in section 2 and section 7. Section 2 added two provisions to Title 28: section 1827 and section 1828, which are titled, and which address, respectively, interpreters in courts of the United States, and special interpretation services. In section 7, which added subsection (6) to 1920, Congress does not use those two phrases. Instead, it uses the phrase "interpreters" simply, not "interpreters in courts of the United States. " and then "special interpretation services". So to the extent that there is any appropriate canon about the use of similar or different language in different provisions of a statute, it seems to us that the appropriate canon is that one should presume that when Congress uses different language, it intends different meanings. I do want to respond to Mr. Fried's point about the number of times the word 2. And as I understand his point, it's that -- it's that it is much more frequently used by itself than it is with the -- with the words "in courts of the United States. " What the statute actually does is add -- say that it's adding section 1827, which it calls It then has a subsection that says that "the administrative office of the United States court has to establish a program to facilitate the use of interpreters in courts of the United States. "
John G. Roberts, Jr.: Where are you reading from?
Dan Himmelfarb: I'm sorry, this is the red brief, 1a of the appendix, which is the very beginning of the Court Interpreters Act. And then there's subsection (c), flipping over to the next page -- I'm sorry, subsection (b) -- which says that "the director has to certify interpreters in courts of the United States. " So what it does at the beginning of the statute is establish this thing called a certified interpreter in courts of the United States. When it thereafter speaks of interpreter simply, that's just a shorthand for a certified interpreter in courts of the United States. So it seems to us that as far as the Court Interpreters Act is concerned, even if it's true that section 2 uses the term in the narrower sense, it doesn't necessarily follow that it's used in the narrower sense in section 7. And the only point I would add about that, as we set -- point out in our brief, it's really not clear that section 2 is limited to oral translators. Soon after the Court Interpreters Act was enacted, and for approximately 16 years thereafter, the administrative office would publish these notices in the Federal Register notifying the public that they were -- there were going to be certification exams for interpreters under section 2 of the Court Interpreters Act. These were pretty streamlined notices, not long at all. And one of the main aspects, the main sections of the notice, was a list of what the director of the administrative office said were the -- were the duties of interpreters in courts of the United States. And to be sure, it listed simultaneous and consecutive interpreting, but it -- it listed sight translation and it listed document translation. So at a minimum, section 2 is not sufficiently clearly limited to oral translators, that the director of the administrative office couldn't issue these notices saying otherwise. I guess the -- the last point I want to make about other statutes, some of which use the term "interpreter" and "translator" together, I have already addressed that in part by saying that in many of those statutes, it really is pretty clearly used in the narrower sense, because you're talking about members of a profession. The -- the only other thing I would say about that is that the premise of Taniguchi's reliance on those statutes seems to be that it would be strangely redundant for Congress to speak in other statutes about interpreters and translators together, if, in fact, the two terms could be used interchangeably, and that redundancy should be avoided. But subsection (6) of 1920 itself has a redundancy in it, because it covers both interpreters and special interpretation services. And I don't think anybody could dispute that anyone who carries out a special interpretation service is an interpreter. So it's not at all odd to have redundancy when Congress is addressing the subject of translation.
John G. Roberts, Jr.: Thank you, counsel. Mr. Fried, you have minutes remaining.
Michael S.  Fried: Very briefly, Your Honor, three points. In the first place, Justice Breyer, I just wanted to let you know that the first decision -- first appellate decision construing 1920(6) to encompass document translation was the D.C. Circuit's decision in Lam Quy in 1981. Second, Mr. Himmelfarb noted that Black's Law Dictionary takes a definition that arguably could encompass document translation, but he didn't mention that the operative version of Black's in 1978 when this statute was passed did not -- was a different definition that excluded document translation. And this change in the definition occurred in 1999, in the seventh edition, after a number of these judicial decisions construing 1920(6) had come down, which supports Your Honor's observation that it could very well merely reflect a recognition of these decisions, rather than independent support for them. Finally, Your Honors, Mr. Himmelfarb cited certain notices issued by the administrative office from many years ago. These brief notices were ministerial documents that simply announced a forthcoming examination. The office has issued the guidance to judiciary policy, which is -- which is the fully expressed views on this issue. And it's posted on the office's website. It's current as of June 9, 2011 -- and expressly provides that document translation is not a part of the statutory services of an interpreter. If there are further questions, I'd be happy to address them.
John G. Roberts, Jr.: Thank you, counsel. The case is submitted.