Opinion

Gaddis v. United States

381 F.3d 444
2004 WL 1801198

Court: Court of Appeals for the Fifth Circuit
Filed: Aug 12, 2004
Status: Published
On the bench: King, Jolly, Higginbotham, Davis, Jones, Smith, Wiener, Barksdale, Garza, Demoss, Benavides, Stewart, Dennis, Clement, Prado, Pickering
Cited by: 55 cases
Authority: More cited than 5.2%

stating that a guardian ad litem is an officer of the court whose role is to assist the court

How later courts described this case

stating that a guardian ad litem is an officer of the court whose role is to assist the court
noting, but not adopting, the Ninth Circuit’s position that private process servers’ fees are taxable costs under Section 1920(1)
“It is clear in this Circuit that Rule 17(c) authorizes and mandates that district courts appoint a guardian ad litem in the situation where the interests of the [incompetent person’s] general representatives … may conflict with the interests of the person … who might otherwise be represented by such general representatives.” (citations omitted)
acknowledging that Rule 54(d) and 28 U.S.C. § 2412 (a)(1) apply to FTCA disputes

Written by the judges who cited it.

The opinion

United States Court of Appeals

Fifth Circuit

F I L E D

UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT August 12, 2004

Charles R. Fulbruge III

Clerk

No. 02-41655

CARLTON GADDIS and LATANZA GADDIS, INDIVIDUALLY AND AS NEXT

FRIEND OF COURTLIN GADDIS, A MINOR; COURTLIN GADDIS, A MINOR,

Plaintiffs-Appellees,

versus

UNITED STATES OF AMERICA, ET AL.,

Defendants,

UNITED STATES OF AMERICA,

Defendant-Appellant.

Appeal from the United States District Court

For the Eastern District of Texas

Before KING, Chief Judge, JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH,

WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART,

DENNIS, CLEMENT, PRADO, and PICKERING, Circuit Judges.

DeMOSS, Circuit Judge:

We took this case en banc to consider whether guardian ad

litem fees could be taxed against the government in a Federal Tort

Claims Act (“FTCA”) case, in light of Crawford Fitting Co. v. J.T.

Gibbons, Inc., 482 U.S. 437 (1987). For the reasons that follow,

we conclude that federal district courts may continue to choose to

tax guardian ad litem fees as court costs against nonprevailing

parties, including against the government in an FTCA case. We thus

AFFIRM the decision of the district court to tax guardian ad litem

fees against the government here.

BACKGROUND

The panel, in Gaddis v. United States, No. 02-41655, 2003 WL

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

a concise statement of the facts and background, which we reproduce

below:

Carlton and Latanza Gaddis were stopped at a street

intersection when a postal employee drove his government

vehicle into theirs. Latanza, who was pregnant,

initially suffered minor discomfort, but a few weeks

later she prematurely delivered their son, Courtlin, with

serious birth defects. The Gaddises sued the United

States under the Federal Tort Claims Act (“FTCA”), 28

U.S.C. § 2671 et seq., for negligence. They requested,

and the district court appointed, a guardian ad litem for

Courtlin.1 After a bench trial, the court found the

United States liable for Courtlin’s injuries and awarded

the Gaddises over $4 million in damages. The court also

taxed as costs $46,299 in guardian ad litem fees against

the government under Fed. R. Civ. P. 54(d)(1).

The Gaddis parents had moved for the appointment of George Bean

(“Mr. Bean”) as guardian ad litem for Courtlin to represent his

interests in the automobile accident litigation. The government

opposed such appointment as premature, arguing that there was no

allegation of a conflict of interest among the Gaddises nor of any

prejudice to Courtlin’s interests. In reply, the Gaddis parents

Mr. and Mrs. Gaddis, who also sued the United States for

loss of consortium with Courtlin, feared that an unexpected

conflict of interest with Courtlin might occur during the

litigation.

urged that Federal Rule of Civil Procedure 17(c)2 authorizes the

court appointment of a guardian ad litem in cases involving minors

and that Courtlin should be appointed a guardian ad litem to ensure

that no one take an unfair advantage in relation to him. The

district court agreed with the Gaddis parents and appointed

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

minor Plaintiff, COURTLIN GADDIS, in the [] litigation.” The

district court further ordered that “the fees charged for the

Ad Litem’s services be reasonable and necessary for representation

of the Minor” and that “the fees charged shall be taxed as court

costs subject to approval by the Court.”

After the bench trial concluded with a finding of government

liability, Mr. Bean filed a motion for his guardian ad litem fees

and requested they be charged against the government as costs

Rule 17(c), Infants or Incompetent Persons, provides:

Whenever an infant or incompetent person has a

representative, such as a general guardian, committee,

conservator, or other like fiduciary, the representative

may sue or defend on behalf of the infant or incompetent

person. An infant or incompetent person who does not

have a duly appointed representative may sue by a next

friend or by a guardian ad litem. The court shall

appoint a guardian ad litem for an infant or incompetent

person not otherwise represented in an action or shall

make such other order as it deems proper for the

protection of the infant or incompetent person.

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

pursuant to Federal Rule of Civil Procedure 54(d).3 The government

opposed the motion on several grounds. The government relied on

Crawford Fitting for its claim that the district court lacked

subject matter jurisdiction to award Mr. Bean guardian ad litem

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

such costs against the government because the government in

28 U.S.C. § 2412(a)4 had only waived its sovereign immunity to pay

Rule 54(d), Costs; Attorneys’ Fees, provides in part:

(1) Costs Other than Attorneys’ Fees. Except when

express provision therefor is made either in a statute of

the United States or in these rules, costs other than

attorneys’ fees shall be allowed as of course to the

prevailing party unless the court otherwise directs; but

costs against the United States, its officers, and

agencies shall be imposed only to the extent permitted by

law. Such costs may be taxed by the clerk on one day’s

notice. On motion served within 5 days thereafter, the

action of the clerk may be reviewed by the court.

Fed. R. Civ. P. 54(d)(1).

Section 2412(a)(1), under Costs and fees, provides:

Except as otherwise specifically provided by statute, a

judgment for costs, as enumerated in section 1920 of this

title, but not including the fees and expenses of

attorneys, may be awarded to the prevailing party in any

civil action brought by or against the United States or

any agency or any official of the United States acting in

his or her official capacity in any court having

jurisdiction of such action. A judgment for costs when

taxed against the United States shall, in an amount

established by statute, court rule, or order, be limited

to reimbursing in whole or in part the prevailing party

for the costs incurred by such party in the litigation.

28 U.S.C.A. § 2412(a)(1) (West 2004). The government further

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

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

for costs as enumerated in 28 U.S.C. § 1920,5 and guardian ad litem

fees are not included in § 1920. The government also contended

that even if the court could award the guardian ad litem fees as

costs, most of Mr. Bean’s claimed expenses were for his legal work

as an attorney on behalf of Courtlin, not for services provided as

Courtlin’s guardian ad litem.

regarding costs, § 2412(a)(1) is the applicable provision governing

costs to be taxed against the nonprevailing government in an FTCA

case.

Section 1920, Taxation of costs, provides:

A judge or clerk of any court of the United States may

tax as costs the following:

(1) Fees of the clerk and marshal;

(2) Fees of the court reporter for all or any

part of the stenographic transcript

necessarily obtained for use in the case;

(3) Fees and disbursements for printing and

witnesses;

(4) Fees for exemplification and copies of

papers necessarily obtained for use in the

case;

(5) Docket fees under section 1923 of this

title;

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries,

fees, expenses, and costs of special

interpretation services under section 1828 of

this title.

A bill of costs shall be filed in the case and, upon

allowance, included in the judgment or decree.

28 U.S.C.A. § 1920 (West 2004).

The district court then held a hearing to determine issues

pertaining to the entry of judgment concerning Courtlin. During

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

regarding the taxation of guardian ad litem fees and determined

that it was bound to follow our post-Crawford Fitting precedents in

Dickerson v. United States, 280 F.3d 470, 478 (5th Cir. 2002);

Lebron v. United States, 279 F.3d 321, 332 (5th Cir. 2002); and

Gibbs v. Gibbs, 210 F.3d 491, 506-08 (5th Cir. 2000), which cases

all allowed for the taxation of the prevailing party’s guardian ad

litem fees as costs under Rule 54(d), but not including fees

attributable to any legal services performed by the guardian

ad litem.6 These three cases were decided after Crawford Fitting,

and the district court correctly pointed out that the Dickerson and

Lebron cases both specifically involved the taxation of guardian

ad litem fees against the government where the plaintiff had

prevailed in an FTCA claim.

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

Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002);

Lebron v. United States, 279 F.3d 321 (5th Cir. 2002); and Gibbs v.

Gibbs, 210 F.3d 491 (5th Cir. 2000), all relied on and affirmed

duPont v. Southern National Bank, 771 F.2d 874 (5th Cir. 1985), a

case decided before Crawford Fitting Co. v. J.T. Gibbons, Inc.,

482 U.S. 437 (1987), where this Court held that the expenses of a

guardian ad litem appointed by the court were properly taxable as

costs pursuant to Rule 54(d). duPont, 771 F.2d at 882. That is,

such costs were allowed where the guardian ad litem was serving in

his role as an officer of the court versus serving any attorney ad

litem function. Id.

guardian ad litem fees against the government, the district court

proceeded to analyze Mr. Bean’s expenses in this case – attempting

to distinguish between Mr. Bean’s time spent as Courtlin’s guardian

ad litem (taxable against the government as a cost) versus his time

spent serving as a legal advisor to Courtlin (certainly entitled to

be paid, but not chargeable against the government as a cost).

After a thorough analysis, which took place at the hearing, the

court disallowed $1687.50, which appeared to be in the nature of

attorney’s fees, and allowed a total of $46,299.00 as legitimate

guardian ad litem fees. In the final judgment, the district court

concluded that “the United States shall pay, as a taxable cost of

court, the Guardian Ad Litem’s fee in the amount of $46,299.00.”

The government timely appealed the taxation of guardian

ad litem fees only, and a panel of this Court, in a per curiam

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

hear the case en banc.

DISCUSSION

Here, the government seeks further review of the discrete

legal issue of whether guardian ad litem fees are taxable costs at

all, or are at least not taxable against the United States. As the

panel indicated, this is a pure question of law subject to de novo

review. See Roe v. Tex. Dep’t of Protective & Regulatory Servs.,

299 F.3d 395, 400 (5th Cir. 2002).

Whether a district court may tax guardian ad litem fees as costs

against the nonprevailing government in an FTCA action.

Regarding this issue, the government made the same arguments

on appeal as it did in the district court, and as it makes here to

the en banc Court. First, the government claims the Supreme Court

has ruled in Crawford Fitting that the costs allowed by Federal

Rule of Civil Procedure 54(d) to a prevailing party in a federal

proceeding are limited to those itemized in 28 U.S.C. § 1920, which

does not include any provision relating to guardian ad litem fees.

Second, the government submits that under Rule 54(d) and 28 U.S.C.

§ 2412(a)(1), costs may be levied against it, but only as

enumerated in § 1920; that is, the government has waived none of

its sovereign immunity as to costs not authorized by statute.

In Crawford Fitting, the Supreme Court explained that

28 U.S.C. § 18217 limits the amount of litigants’ witness fees

Section 1821, Per diem and mileage generally; subsistence,

provides in part:

(a)(1) Except as otherwise provided by law, a witness in

attendance at any court of the United States, or before

a United States Magistrate Judge, or before any person

authorized to take his deposition pursuant to any rule or

order of a court of the United States, shall be paid the

fees and allowances provided by this section.

(2) As used in this section, the term “court of the

United States” includes, in addition to the courts listed

in section 451 of this title, any court created by Act of

Congress in a territory which is invested with any

jurisdiction of a district court of the United States.

(b) A witness shall be paid an attendance fee of $40 per

day for each day’s attendance. A witness shall also be

paid the attendance fee for the time necessarily occupied

awardable, and § 1920 allows a court to tax such fees as costs only

within those limits. 482 U.S. at 441-42. In the absence of

statutory or contractual authorization for more generous payments,

federal courts are constrained by the $30-per-day (now $40-per-day)

cap when ordering one side to pay for the other’s expert witnesses.

Id. at 444-45. Crawford Fitting involved two cases of awards to

prevailing parties that covered all the expenses reasonably

incurred for their experts, bestowed under the authority of Rule

54(d) as costs. The Court rejected the excessive awards,

concluding that “absent explicit statutory or contractual

authorization for the taxation of the expenses of a litigant’s

witness as costs, federal courts are bound by the limitations set

out in 28 U.S.C. § 1821 and § 1920.” Id. at 445. In coming to

that holding, the Supreme Court considered the interplay among Rule

54(d), § 1920, and § 1821(b):

Petitioners argue that since § 1920 lists which

expenses a court “may” tax as costs, that section only

authorizes taxation of certain items. In their view,

§ 1920 does not preclude taxation of costs above and

beyond the items listed, and more particularly, amounts

in excess of the § 1821(b) fee. Thus, the discretion

granted by Rule 54(d) is a separate source of power to

tax as costs expenses not enumerated in § 1920. We

think, however, that no reasonable reading of these

in going to and returning from the place of attendance at

the beginning and end of such attendance or at any time

during such attendance.

28 U.S.C.A. § 1821(a)-(b) (West 2004). The subsection (b) in

effect at the time of Crawford Fitting provided for a $30 per diem

cap; it was increased to $40 by amendment in 1990. Id. note.

provisions together can lead to this conclusion, for

petitioners’ view renders § 1920 superfluous. If Rule

54(d) grants courts discretion to tax whatever costs may

seem appropriate, then § 1920, which enumerates the costs

that may be taxed, serves no role whatsoever. We think

the better view is that § 1920 defines the term “costs”

as used in Rule 54(d). Section 1920 enumerates expenses

that a federal court may tax as a cost under the

discretionary authority found in Rule 54(d). It is

phrased permissively because Rule 54(d) generally grants

a federal court discretion to refuse to tax costs in

favor of the prevailing party. One of the items

enumerated in § 1920 is the witness fee, set by § 1821(b)

at $30 per day.

We cannot accept an interpretation of Rule 54(d)

that would render any of these specific statutory

provisions entirely without meaning. Repeals by

implication are not favored, and petitioners proffer the

ultimate in implication, for Rule 54(d) and §§ 1920 and

1821 are not even inconsistent. We think that it is

clear that in §§ 1920 and 1821, Congress comprehensively

addressed the taxation of fees for litigants’ witnesses.

This conclusion is all the more compelling when we

consider that § 1920(6) allows the taxation, as a cost,

of the compensation of court-appointed expert witnesses.

There is no provision that sets a limit on the

compensation for court-appointed expert witnesses in the

way that § 1821(b) sets a limit for litigants’ witnesses.

It is therefore clear that when Congress meant to set a

limit on fees, it knew how to do so. We think that the

inescapable effect of these sections in combination is

that a federal court may tax expert witness fees in

excess of the $30-per-day limit set out in § 1821(b) only

when the witness is court-appointed. The discretion

granted by Rule 54(d) is not a power to evade this

specific congressional command. Rather, it is solely a

power to decline to tax, as costs, the items enumerated

in § 1920.

Id. at 441-42. We note that neither Crawford Fitting, the opinions

of the two lower courts which were appealed in that case, nor any

of the briefs submitted makes any specific mention of the propriety

of taxing guardian ad litem fees as costs pursuant to Rule 54(d) or

otherwise.

The Supreme Court restated its holding from Crawford Fitting

in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83,

86 (1991), superceded by statute as stated in Landgraf v. USI Film

Products, 511 U.S. 244, 251 (1994): “[W]e held that [§§ 1920 and

1821] define the full extent of a federal court’s power to shift

litigation costs absent express statutory authority to go further.”

The Court explained: “Crawford Fitting said that we would not

lightly find an implied repeal of § 1821 or of § 1920, which it

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

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

499 U.S. at 87.

The precise issue in Casey was whether fees for services

rendered by experts in civil rights litigation may be shifted to

the nonprevailing party pursuant to § 1988, which permits the award

of “a reasonable attorney’s fee as part of the costs.” Id. at 97-

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

“§ 1988 conveys no authority to shift expert fees. When experts

appear at trial, they are of course eligible for the fee provided

by § 1920 and § 1821.” Casey, 499 U.S. at 102. Again, neither

Casey, the opinion below, nor any of the briefs submitted makes any

specific mention of the propriety of taxing guardian ad litem fees

as costs pursuant to Rule 54(d) or otherwise. Moreover, Congress

disagreed with the Court shortly after it provided its

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

amended § 1988 to explicitly provide courts the discretion to

“include expert fees as part of the attorney’s fee.” 42 U.S.C.A.

§ 1988(c) (West 2004). The Court itself conceded that § 113 of the

1991 Civil Rights Act, which added subsection (c) to § 1988, was

obviously drafted with Casey’s erroneous result in mind. Landgraf,

511 U.S. at 251.

This Court has certainly followed the specific holding of the

Supreme Court in Crawford Fitting, as restated in Casey, as to the

monetary cap on litigants’ witness fees explicitly set by Congress

in § 1821(b), which cannot be circumvented by federal courts under

the sole authority of Rule 54(d).8 In fact, this Court in Coats v.

Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993), also stated:

“Rule 54(d) of the Federal Rules of Civil Procedure provides for an

award of costs ‘to the prevailing party unless the court otherwise

directs.’ 28 U.S.C. § 1920 defines recoverable costs, and a

district court may decline to award the costs listed in the statute

but may not award costs omitted from the list.” Id. at 891

See United States ex rel. Wallace v. Flintco Inc., 143 F.3d

955, 972 (5th Cir. 1998) (applying Crawford Fitting and setting

aside cross-awards of expert witness fees in excess of those

provided for by § 1821); Pedraza v. Jones, 71 F.3d 194, 196 n.3

(5th Cir. 1995) (noting how cases that allowed expert witness fees

in excess of the amount specified by § 1821 were overruled by

Crawford Fitting); Coats v. Penrod Drilling Corp., 5 F.3d 877, 891

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

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

(footnote and citation omitted). However, in Coats, as in Crawford

Fitting and Casey, again the taxation of guardian ad litem fees

pursuant to Rule 54(d) or otherwise was not at issue. Rather, we

were considering the propriety of the costs of obtaining

transcripts for several depositions necessarily obtained for use at

trial, travel expenses, costs of “blow-ups,” video technician fees,

party witness fees, party expert fees, and costs of photocopies

necessarily obtained for use in the case. Coats, 5 F.3d at 891-92.

Here, we acknowledge the government’s argument as it is

inferred from the language of Crawford Fitting quoted above. That

is, because § 1920 is silent as to guardian ad litem fees, it does

not include or define them as costs. Therefore, such guardian ad

litem fees are not taxable as costs against a nonprevailing party

under Rule 54(d), particularly the government under § 2412(a),

which expressly cross-references § 1920.

However, we easily reject the government’s argument: first,

because Federal Rule Civil Procedure 17(c) constitutes the

alternative express statutory authorization as required by Crawford

Fitting to provide district courts with the inherent power and

discretion to tax guardian ad litem fees as costs against the

nonprevailing party, including the government in an FTCA case;

second, because even if Rule 17(c) did not constitute the

alternative express statutory authority as required by Crawford

Fitting, we reasonably interpret the meaning of the phrase “court

appointed experts” in § 1920(6) to encompass guardians ad litem

such that district courts can tax their compensation as costs per

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

finally, because even in light of Crawford Fitting, this Court’s

precedent dictates the propriety of district courts taxing guardian

ad litem fees as costs, including against the government in an FTCA

case.

Rule 17(c) grants district courts the inherent authority to tax

guardian ad litem fees as costs.

We start with Federal Rule of Civil Procedure 17(c), which is

the source of the district court’s authority to appoint Mr. Bean as

guardian ad litem for the minor Courtlin Gaddis in this FTCA case.

We note that the Supreme Court has never construed, interpreted, or

applied Rule 17(c) in any opinion.9 The only historical note in

The Supreme Court has briefly mentioned guardians ad

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

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

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

considered whether an agency or organization could proceed as a

civil party in forma pauperis, where the Court held that only

natural persons, not artificial entities, could proceed in forma

pauperis as civil litigants per 28 U.S.C. § 1915. The Court

recited in a footnote:

On occasion, when a party is a minor or incompetent, or

fails to cooperate with appointed counsel, or is for some

other reason unable to file a timely affidavit, we will

accept an affidavit from a guardian ad litem or an

attorney. By accepting such an affidavit, we bend the

requirement that the affiant state that “he” is indigent

and that “he” believes “he” is entitled to relief. In

such a case, however, it is clear that the party himself

is a “person” within the meaning of § 1915. The only

question is whether Congress intended to deny § 1915

the published rules indicates that Rule 17(c) “is substantially

former Equity Rule 70 (Suits by or Against Incompetents) with

slight additions.”10 Fed. R. Civ. P. 17 advisory committee’s note.

It is clear in this Circuit that Rule 17(c) authorizes and

mandates that district courts appoint a guardian ad litem in the

situation where the interests of the minor’s general

representatives, the Gaddis parents here, may conflict with the

interests of the person, their minor child Courtlin here, who might

otherwise be represented by such general representatives. Chrissy

F. ex rel. Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25, 27

(5th Cir. 1989); Adelman ex rel. Adelman v. Graves, 747 F.2d 986,

benefits to such a person who for some reason peculiar to

him is disabled from filing an affidavit. It is quite a

different question whether Congress intended to extend

§ 1915 to entities that, by their nature, could never

meet the statute’s requirements.

Id. at 205 n.6. This language in no way addresses the appropriate

circumstances for a court to appoint guardians ad litem per Rule

17(c) nor how such guardians ad litem are to be paid.

Equity Rule 70, Suits by or Against Incompetents, as it

appeared in the eighth edition of the New Federal Equity Rules,

provided:

Guardians ad litem to defend a suit may be appointed by

the court, or by any judge thereof, for infants or other

persons who are under guardianship, or otherwise

incapable of suing for themselves. All infants and other

persons so incapable may sue by their guardians, if any,

or by their prochein ami; subject, however, to such

orders as the court or judge may direct for the

protection of infants and other persons.

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

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

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

next friend] when it appears that the minor’s [or incompetent

person’s] general representative has interests which may conflict

with those of the person he is supposed to represent.”(second and

third alteration in original)(citation omitted). Judges may not

“ignore or overlook such a fundamental requirement for the

protection of infants [or incompetent persons].” Adelman, 747 F.2d

at 989 (alteration in original) (citing Roberts v. Ohio Cas. Ins.

Co., 256 F.2d 35, 39 (5th Cir. 1958)). The need to protect the

minor’s or incompetent person’s rights and interests in federal

court proceedings is extremely vital; this is why “[i]t is within

the district court’s discretion to determine [the minor’s] need for

[guardian ad litem] representation, and who may best fill that

need.” Adelman, 747 F.2d at 989. This is also why, “as a matter

of proper procedure, the court should usually appoint a guardian ad

litem.” Id. (citing Roberts, 256 F.2d at 39).

This power to appoint guardians ad litem pursuant to Rule

17(c) is important not only to ensure that the minor’s rights and

interests are fully protected in cases where the minor is otherwise

represented and there may be conflicts of interest, but also to

ensure that the minor has proper access to the federal judicial

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

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

district court should consider that access to the courts by

aggrieved persons should not be unduly limited”). Such fair access

to the judicial system by minors and incompetent persons is

enhanced if the district court exercises not only the power to

appoint guardians ad litem, but also, as Rule 17(c) expressly

directs, to “make such other order as it deems proper for the

protection of the infant or incompetent person.” Fed. R. Civ. P.

17(c). This additional power is necessarily required so the

district court can effectuate its appointment of a competent,

independent guardian ad litem.

It is precisely due to such legitimate and practical reasons

that district courts must also have the inherent authority and

discretion to tax guardian ad litem fees as costs against

nonprevailing parties. See Panitch v. State of Wisconsin, 451 F.

Supp. 132, 136 (E.D. Wis. 1978) (“Although Rule 17(c) is silent on

the subject, we believe that an award for the reasonable value of

services provided by the guardian ad litem may be taxed as costs

against all of the defendants, jointly and severally.”). The

Panitch court ordered the nonprevailing defendants to pay the minor

plaintiff’s guardian ad litem fees as costs under Rule 17(c) “as a

necessary consequence of the court’s equitable responsibility to

protect the interests of minor litigants who cannot protect

themselves.” Id. (citation omitted). Although we acknowledge

Rule 17(c) does not specifically state that district courts may tax

guardian ad litem fees as costs, we find the Panitch court’s

reasoning persuasive as to the district court’s inherent authority

to tax guardian ad litem fees as costs under the express mandate of

Rule 17(c).

Thus, a district court may tax guardian ad litem fees as costs

per Rule 17(c) because we find Rule 17(c) to constitute the

alternative express statutory authorization as required by Crawford

Fitting. See, e.g., ICG Communications, Inc. v. Allegiance

Telecom, 211 F.R.D. 610, 613 (N.D. Cal. 2002) (noting each Federal

Rule of Civil Procedure has the imprimatur of Congress such that

Rule 26 constituted a law for purposes of 27 U.S.C. § 222).

Likewise, the inherent powers and responsibility under Rule 17(c)

to make such orders as the court deems proper also constitute the

alternative express statutory authorization to tax guardian

ad litem fees as costs to meet the requirements of § 2412(a)(1) and

defeat any associated claim of sovereign immunity by the

nonprevailing government in an FTCA case.11 In the absence of any

The FTCA expressly states that: “The United States shall

be liable, respecting the provisions of this title relating to tort

claims, in the same manner and to the same extent as a private

individual under like circumstances, but shall not be liable for

interest prior to judgment or for punitive damages.” 28 U.S.C. §

2674 (emphasis added); see also id. § 1346(b)(1) (describing

exclusive jurisdiction of district courts for civil actions brought

against the United States as defendant “for money damages . . . for

injury or loss of property, or personal injury or death caused by

the negligent or wrongful act or omission of any employee of the

Government while acting within the scope of his office or

employment, under circumstances where the United States, if a

Supreme Court holding or instruction otherwise, we therefore

exercise our authority as an en banc Court to hold that under Rule

17(c), the district courts have inherent authority and discretion

to determine:

(a) Whether a guardian ad litem needs to be appointed

to protect the interests of the minor or

incompetent person, and if so, who will be

appointed to best serve in that capacity;

(b) Whether the guardian ad litem will be compensated

for his services; and if so, the basis upon which

the value of such services shall be determined, so

long as the guardian ad litem is acting in his

guardian ad litem capacity and not in any attorney

ad litem capacity; and

litem will be treated (1) as a court cost to be

taxable against the nonprevailing party or (2) as

an expense to be payable out of any funds recovered

by or payable to the minor or incompetent person on

whose behalf the guardian ad litem was appointed.

Section 1920(6) grants district courts the statutory authority to

tax guardian ad litem fees as costs against the nonprevailing

government in an FTCA case.

private person, would be liable to the claimant . . . .”).

The Supreme Court discussed the broad nature and extent of the

government’s waiver of sovereign immunity under the FTCA in United

States v. Yellow Cab Co., 340 U.S. 543 (1951). There, the Court

stated that “the [FTCA] waives the Government’s immunity from suit

in sweeping language” and “unquestionably.” Id. at 547 (emphasis

added). Moreover, the Court noted that because the Federal Rules

of Civil Procedure apply to “all civil actions,” the former

language of the FTCA which referred specifically to the application

of the Rules was omitted as unnecessary. Id. at 553 n.9. Thus,

there is no question that FTCA actions are properly subject to the

Rules. See Simon v. United States, 891 F.2d 1154, 1156 (5th Cir.

1990); United States v. Acord, 209 F.2d 709, 711 (10th Cir. 1954).

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

Court to constitute the alternative express statutory authority as

required by Crawford Fitting to provide district courts with the

inherent power and discretion to tax guardian ad litem fees as

costs, this Court concludes that subsection (6) of § 1920 providing

for “[c]ompensation of court appointed experts” can reasonably be

read to include fees for services rendered by a guardian ad litem

appointed by a court pursuant to Rule 17(c).

We have clearly stated that Crawford Fitting “limits judicial

discretion with regard to the kind of expenses that may be

recovered as costs; it does not, however, prevent courts from

interpreting the meaning of the phrases used in § 1920.” West Wind

Africa Line, Ltd. v. Corpus Christi Marine Servs. Co., 834 F.2d

1232, 1238 (5th Cir. 1988); see also Cengr v. Fusibond Piping Sys.,

Inc., 135 F.3d 445, 454 (7th Cir. 1998) (“Under Crawford [Fitting],

courts are allowed to interpret the meaning of the phrases used in

§ 1920.”); Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175,

177 (9th Cir. 1990) (finding the court’s interpretation of

§ 1920(1) “supported by recent decisions from the Fifth and the

Seventh Circuits that have held that courts are free to interpret

what constitutes taxable costs after Crawford [Fitting]”); SK Hand

Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 944 (7th Cir.

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

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

despite Crawford Fitting).

In West Wind, we determined that even though § 1920 does not

explicitly enumerate depositions in its list of costs, courts have

properly interpreted § 1920(2) providing for “fees of the court

reporter” and § 1920(4) providing for “fees for exemplification and

copies of papers necessarily obtained for use in the case” as

statutorily authorizing the taxation of the costs of original

deposition transcripts and copies. 834 F.2d at 1238; United States

v. Kolesar, 313 F.2d 835, 838-39 (5th Cir. 1963) (holding the cost

of a deposition copy taxable against the government in an FTCA case

as a matter of statutory construction under § 1920(2)); see also

Cengr, 135 F.3d at 454 (finding deposition transcript expenses to

be taxable costs as a matter of statutory construction under

§ 1920(2) as stenographic transcripts, and photocopying expenses

authorized under § 1920(4) as exemplification fees); Aflex Corp.,

914 F.2d at 177 (“The cost of deposition copies is ‘encompassed’ by

section 1920(2), and is therefore properly taxed under the Crawford

[Fitting] holding[].”); Maxwell v. Hapag-Lloyd Aktiengesellschaft,

Hamburg, 862 F.2d 767, 770 (9th Cir. 1988) (interpreting § 1920 and

finding the costs of photographic materials used at trial

encompassed by § 1920(4)’s allowance for “[f]ees for

exemplification and copies of papers necessarily obtained for use

in the case”); S.K. Hand, 852 F.2d at 944 (finding deposition

transcript expenses to be costs encompassed by § 1920(2)); Federal

Procedure, Lawyer’s Edition § 26:54 (2003) (“Even though

28 U.S.C.A. § 1920 does not specifically mention depositions, the

Supreme Court’s Crawford Fitting decision does not preclude courts

from finding that deposition transcripts are authorized by § 1920,

as the Supreme Court did not prevent courts from interpreting the

meaning of the phrases used in § 1920.”) (footnote omitted). Also,

section 1920(1)’s phrase “[f]ees of the clerk and marshal” has been

interpreted by the Ninth Circuit to include private process

servers’ fees as taxable costs because the service of summonses and

subpoenas is now done almost exclusively by private parties

employed for that purpose, not the U.S. Marshal, even though there

is no express provision authorizing the payment of private process

servers in § 1920. Aflex Corp., 914 F.2d at 178.

Similarly, even though § 1920 does not specifically mention

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

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

interpreted as a court appointed expert under § 1920(6).12 The

guardian ad litem is an officer of the court with “full

responsibility to assist the court to secure a just, speedy, and

inexpensive determination of the action.” Noe v. True, 507 F.2d 9,

We note that at least one district court, after Crawford

Fitting was decided, has found the fees and expenses of a guardian

ad litem taxable as costs specifically under § 1920 together with

Rule 54(d), although the court declined to name under which

provision of § 1920 guardian ad litem fees were included. Allstate

Ins. Co., Inc. v. Jones, 763 F. Supp. 1101, 1102 (M.D. Ala. 1991).

12 (6th Cir. 1974) (internal quotations and citation omitted). The

guardian ad litem’s special duty is to submit to the court for its

consideration and decision every question involving the statutory

and constitutional rights of the minor that may be affected by the

action. See Chrissy F., 883 F.2d at 27 (noting how the appointment

of guardians ad litem alleviate the risk of the minor party

becoming “a pawn to be manipulated on a chess board larger than his

own case”) (citation omitted). Guardians ad litem thus perform

independent functions that are integral and essential to the

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

1989) (finding guardians ad litem are entitled to quasi-judicial

immunity because of same).

Therefore, guardians ad litem appointed by the court

reasonably serve as experts in the sense that they liaise with the

court and are charged with the important duty of providing their

insight as to how the judicial process is or is not comporting with

the best interests of the minor or incompetent person involved.

While there is some indication in the legislative history that

court appointed expert as used in § 1920(6) refers to a court

appointed expert as appointed pursuant to Federal Rule of Evidence

706,13 the plain statutory language of § 1920(6) does not so

See H.R. Rep. 95-1687, at 12 (1978), reprinted in 1978

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

§ 1920, which added the entirety of subsection (6), there was no

specific subsection that dealt with either interpreters or court

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

narrowly limit the interpretation of court appointed expert. This

en banc Court is thus not constrained to so narrowly interpret the

category of court appointed expert. Therefore, we find that the

court appointment of a guardian ad litem pursuant to Rule 17(c)

clearly falls within the reasonable scope of § 1920(6)’s

authorization for courts to tax the costs of “court appointed

experts.”14 This finding also defeats any claim of sovereign

immunity by the government because § 2412(a)(1) expressly provides

that § 1920 costs are taxable against the nonprevailing

government.15

Court Interpreters Act, so the language about Federal Rule of

Evidence 706 governing what a “court appointed expert” is, while

located in the legislative history, seems to be an afterthought,

especially considering that the crux of the House report is

directed toward the need for and process of appointing and

budgeting for court language interpreters, not other court

appointed experts. The report also indicates that the original

impetus for the Court Interpreters Act was the Sixth Circuit’s

decision in United States ex rel. Negron v. New York, 434 F.2d 386,

390-91 (6th Cir. 1970), which held that the Sixth Amendment

requires that non-English-speaking criminal defendants be informed

of their right to simultaneous interpretation of proceedings at the

government’s expense. H.R. Rep. 95-1687, at 3 (1978), reprinted in

1978 U.S.C.C.A.N. 4652, 4653-54. There is no such historic basis

given for why costs of court appointed experts should be allowed,

only the abrupt one-sentence reference to Rule 706's application.

Even West Virginia University Hospitals, Inc. v. Casey,

499 U.S. 83 (1991), which restated the holding of Crawford Fitting,

seems to condone the practice of courts interpreting the language

of the categories of expenses listed in § 1920. Id. at 87 (noting

how no subsection of § 1920 could be “reasonably read to include

fees for services rendered by an expert employed by a party in a

nontestimonial, advisory capacity”) (emphasis added).

We again note the sweeping and unquestionable waiver of

sovereign immunity by the government under the FTCA. Yellow Cab,

This Circuit’s post-Crawford Fitting precedent provides for the

taxation of guardian ad litem fees as costs against the government

in an FTCA case.

Alternatively, were guardian ad litem fees not construed by

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

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

precedent16 dictates the continued propriety of district courts to

tax guardian ad litem fees as costs against nonprevailing parties,

including the government in an FTCA case. While we recognize the

underlying treatment the Supreme Court gave to the interplay

between Rule 54(d) and § 1920 in Crawford Fitting, we are reluctant

to and thus do not apply any such proscription here to the taxation

of guardian ad litem fees as costs against the government in an

FTCA case where the plaintiffs prevailed. We decline to read

Crawford Fitting as restricting us in this case for the following

reasons:

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

of the statutory provision which ultimately became the FTCA:

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

the same extent as if the United States were a private litigant,

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

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

was reenacted as the present FTCA in 1948, the Court made clear

that “[w]e rely on the meaning of the language in the original Act

and read the revised language as carrying it out.” Id. Thus, we

properly construe the plain meaning of “court appointed expert” in

§ 1920(6) as an enumerated cost with the government’s broad waiver

of sovereign immunity in mind.

Dickerson, 280 F.3d at 478; Lebron, 279 F.3d at 332; Gibbs,

210 F.3d at 506-08.

(a) No court in this Circuit ever has read Crawford

Fitting to disallow the taxation of guardian ad

litem fees against nonprevailing parties, including

the government in FTCA cases;

(b) In addition to the precedents in this Circuit, each

other circuit that has spoken on whether guardian

ad litem fees can be taxed as court costs, either

before or after Crawford Fitting – including the

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

agreed that they can17;

Seventh and Eleventh Circuits, have also agreed

that guardian ad litem fees can be taxed as costs18;

Hull v. United States, 53 F.3d 1125, 1128-29 (10th Cir.

1995) (upholding taxation of guardian ad litem fees as costs

against nonprevailing government in an FTCA case under Rule 54(d))

(post-Crawford Fitting); Kollsman v. Cohen, 996 F.2d 702, 706 (4th

Cir. 1993) (remanding for the district court to determine which

costs were attributable to role of guardian ad litem versus

attorney ad litem and to charge them against nonprevailing party

pursuant to court’s authority under Rule 54(d)) (post-Crawford

Fitting); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 854

(D.C. Cir. 1981) (holding the district court properly allowed

guardian ad litem fees to be taxed as costs) (pre-Crawford

Fitting), abrogated on other grounds, Duggan v. Keto, 554 A.2d

1126, 1139-40 (D.C. 1989); Franz v. Buder, 38 F.2d 605, 606 (8th

Cir. 1930) (allowing taxation of guardian ad litem fees as costs

pursuant to Federal Equity Rule 70) (pre-Crawford Fitting).

Calva-Cerqueira v. United States, 281 F. Supp. 2d 279, 301

(D.D.C. 2003) (allowing taxation of guardian ad litem expenses as

costs against the nonprevailing government in an FTCA action

pursuant to Rule 54(d)) (post-Crawford Fitting); Jones, 763 F.

Supp. at 1102 (allowing prevailing party to recover fees and

expenses of guardian ad litem as taxable costs pursuant to § 1920

and Rule 54(d)) (post-Crawford Fitting); United States v. 1,197.29

Acres of Land, More or Less, Situate in Butler County, State of

Kan., 759 F. Supp. 728, 735 (D. Kan. 1991) (“The court appointed

guardian ad litem is entitled to a reasonable fee for his services

in this action, to be set by the court and taxed as costs.”) (post-

Crawford Fitting); United States v. Certain Lots in City of

Virginia Beach, Va. Known as Lots Eighteen (18) and Nineteen (19),

in Block Three (3), 657 F. Supp. 1062, 1066 (E.D. Va. 1987) (taxing

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

“guardian ad litem fees” appears anywhere in the

Supreme Court’s decision in Crawford Fitting, nor

in any brief submitted to the Supreme Court in

Crawford Fitting, nor in the opinions of either of

the two cases from the Fifth Circuit considered by

the Supreme Court in Crawford Fitting;

(e) We have found no Supreme Court opinion that

addresses in any way the propriety of charging

guardian ad litem fees as costs to be paid by the

nonprevailing party in any proceeding in federal

court;

(f) Finally, the practice of assessing guardian ad

litem fees as costs against a nonprevailing party

is clearly recognized by state courts applying

their respective state statutes and rules governing

the appointment and payment of guardians ad litem.19

For these reasons we conclude that the Supreme Court did not have

the subject of guardian ad litem fees before it in rendering its

opinion in Crawford Fitting; and because of the wide and deep

precedents in this Circuit and other federal courts, we are not

obligated to extend the language of Crawford Fitting to overrule a

guardian ad litem fees as court costs against nonprevailing United

States) (pre-Crawford Fitting); Panitch v. State of Wisconsin, 451

F. Supp. 132, 136 (E.D. Wis. 1978) (taxing guardian ad litem fees

as costs against all nonprevailing parties pursuant to Rule 17(c),

though the Rule is “silent on the subject”) (pre-Crawford Fitting).

See, e.g., Ala. R. Civ. P. 17(d) (West 2003); 755 Ill. Comp.

Stat. Ann. 5/27-4 (West 2004); Mich. Comp. Laws Ann. § 600.2045

(West 2004); N.C. Gen. Stat. § 1A-1(b)(2) (2004) (codifying N.C. R.

Civ. P. 17); Tex. R. Civ. P. 173 (Vernon 2003); 6A Charles Alan

Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and

Procedure § 1570, at 506 (2d ed. 1990)(noting how the law of

several states provides for the taxation of guardian ad litem fees

as costs).

practice that has been widely accepted as fair and proper in the

absence of express language from the Supreme Court requiring that

change.

Overall, we thus hold that district courts retain the

discretion to award guardian ad litem fees as court costs and

assess them against nonprevailing parties, including the government

in an FTCA case.20

Whether the district court here appropriately assessed the award of

guardian ad litem fees.

District courts have broad discretion in determining the

appropriateness of an award of costs. Dickerson, 280 F.3d at 478

(citing Gibbs, 210 F.3d at 500). We review a district court’s

award or denial of costs, including guardian ad litem fees, for an

abuse of discretion. Dickerson, 280 F.3d at 478 (citations

This Court notes that district courts sitting in diversity

can look to the applicable state statutes governing the appointment

and payment of guardians ad litem, instead of Rules 17(c) and

54(d), and § 1920. See, e.g., Kollsman, 996 F.2d at 705 n.2

(correcting district court’s application of the Virginia guardian

ad litem statutes and applying Rules 17(c) and 54(d) instead where

district court had erred in finding diversity jurisdiction);

duPont, 771 F.2d at 882 n.6 (noting that applicable Texas law

regarding taxation of guardian ad litem fees as costs could apply

in diversity case); Mulholland v. Schneider Serv. Co., Inc.,

661 F.2d 708, 712 (8th Cir. 1981) (applying Missouri statute

regarding costs of defendant guardian ad litem in diversity case).

But see Miron v. APCO Corp., 289 F. Supp. 915, 916 (E.D. Wis. 1968)

(applying Rule 54(d) discretion to not award guardian ad litem fees

in a diversity case instead of the Wisconsin statute that would

have required such award).

omitted). “[W]here the same person acts in the capacities as both

a minor’s guardian ad litem and as his attorney ad litem, only the

person’s expenses in the former role are taxable as costs under

Fed. R. Civ. P. 54(d)." Id. (quoting Gibbs, 210 F.3d at 506).

Here, the district court underwent a thorough expense-by-

expense determination as to which of Mr. Bean’s fees were in the

nature of legal services. The court found that certain of

Mr. Bean’s case law and statutory research and the drafting of his

motion for fees were not properly chargeable and disallowed them as

costs. We conclude the district court did not abuse its broad

discretion to determine the appropriate amount of costs to be

awarded to Mr. Bean.

CONCLUSION

Having carefully reviewed the record of this case and the

parties’ respective briefing and arguments, for the reasons set

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

the court appointed guardian ad litem his fees as a court cost

chargeable against the nonprevailing government in this FTCA case.

We also AFFIRM the amount of guardian ad litem fees awarded.

AFFIRMED.

KING, Chief Judge, dissenting:

I respectfully dissent. For the reasons cogently explained in

Parts II.A-B and III of Judge Smith’s dissenting opinion, I would

hold that guardian ad litem fees cannot be taxed as costs of court

under the authority of Rule 54(d) because they are not enumerated

in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons,

Inc., 482 U.S. 437, 441-42 (1987). As to whether Rule 17 provides

a separate source of authority, it could well be that the power to

appoint a guardian ad litem carries with it an inherent power to

order payment: out of the award, out of some res before the court,

from the parents, or possibly from another private party before the

court; the bounds of the district court’s authority in such

practical matters are difficult to mark. But, whatever may be true

as regards the liability of a private litigant, Rule 17 does not

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

sovereign immunity that would permit an order directed at the

government, which is the issue in today’s case. See, e.g., United

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

U.S.C. § 2412(a)(1).

ultimately able to agree on nothing more than

a result: Guardian ad litem fees may be taxed

SMITH, dissenting, joined by JOLLY, as costs against the government despite sover-

EMILIO M. GARZA, BENAVIDES, and eign immunity and despite Crawford Fitting

PRADO: Co. v. J.T. Gibbons, Inc., 482 U.S. 437

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

In an act of Orwellian doublethink,21 the illusory, however, that the majority feels com-

majority concludes that although “Rule 17(c) pelled to insulate itself in layer upon layer of

does not specifically state” that guardian ad “alternative” holdings. As a result, the true

litem fees may be taxed as costs, it neverthe- basis for today’s decision remains a mys-

less provides “express statutory authorization” terySSeven to the majority that wrought it.

for that result. Compare Maj. Op. at 18 with

id. at 13, 18.22 Emboldened by that cogent in- The unescapable reality is that the federal

sight, the majority then embarks on a broad rules and statutes fail to provide that ad litem

survey of legal fictions, highlighted by an im- fees may be taxed as costs, and the only other

pliedly explicit waiver of sovereign immunity authority for that proposition, duPont v. S.

and the discovery that a statute has binding Nat’l Bank, 771 F.2d 874 (5th Cir. 1985), fails

force despite its repeal in 1948. to survive Crawford Fitting. Because the ma-

jority is unable to accept the policy implica-

As if sitting in Congress, the majority is tions of that result, it boldly infers the exis-

tence of a power that Congress has not yet

seen fit to provide, then brazenly declares that

“Doublethink means the power of it is “expressly” and “specifically” provided for

holding two contradictory beliefs in one’s mind in rules and statutes that are entirely silent on

simultaneously, and accepting both of them . . . . the subject. Such an opinion can only be the

The process has to be conscious, or it would not be product of a majority that is more confident in

carried out with sufficient precision, but it also has its result than in its reasoning, so I respectfully

to be unconscious, or it would bring with it a dissent.

feeling of falsity and hence of guilt.” G. Orwell,

Nineteen Eighty-Four 176 (1949). I.

In its first and least convincing holding, the

This is not the first time an en banc

majority accepts the argument that Crawford

majority of this court has reached such a

Fitting implicitly overrules duPont, so the ma-

perplexing result. See Kelly v. Lee’s Old

Fashioned Hamburgers, Inc., 908 F.2d 1218, jority agrees that it is therefore necessary to

1222 (5th Cir. 1990) (en banc) (Smith, J., find a rule or statute that expressly authorizes

dissenting) (“[T]he presence of the word ‘express’

should be enough of a clue that that word, rather

than the word ‘implied,’ is what in fact was meant

in the promulgation of [Rule 54(b)].”).

the taxation of ad litem fees as costs.23 Faced turn.

with that challenge, the majority holds that the

power to tax costs should be expressly enu- 1.

merated in rule 17(c), so the majority accord- It is not surprising that the meaning of the

ingly findsSSnotwithstanding the text of the term “express” has changed little since 1990,

ruleSSthat it is expressly enumerated.24 when this court decided Kelly and first begat

the concept of an impliedly-express statement.

As I will demonstrate, the majority’s rea- Then, as now, the term “express” meant “dir-

soning is severely flawed. It is no exaggera- ectly and distinctly stated or expressed rather

tion to observe that the majority (1) ignores than implied or left to inference.” WEBSTER’S

the plain meaning of some of the most elemen- THIRD NEW INT’L DICTIONARY 803 (Merriam-

tary words in the English language; (2) relies Webster 1986).25 It is, to put it mildly, “the

on a long-since repealed waiver of immunity; very opposite of ‘implied.’” Kelly, 908 F.2d at

(3) gives t he federal rules an impermissibly 1222 (Smith, J., dissenting).

broad mandate; and (4) then inexplicably

refuses to remand for application of its newly- Because rule 17(c) makes no mention of ei-

drafted rules. ther the taxation of costs or the payment of ad

litem fees, there is no sense in which it “ex-

A. pressly” provides that a guardian’s fees may be

The majority finds its “express authoriza- taxed as costs. If the power to tax such fees

tion” in two parts of rule 17(c): first, in the as costs exists somewhere within rule 17(c), it

language that provides for the appointment of can only be as an implicit component of the

a guardian ad litem; and second, in the lan- district court’s authority to appoint a guardian.

guage that allows the court to issue other or- As a result, the majority’s claim that rule 17(c)

ders for the protection of the minor. Cf. FED. contains “express statutory authorization” for

R. CIV. P. 17(c). I address those claims in the taxation of ad litem fees as costs is pa-

tently false.26

See Crawford Fitting, 482 U.S. at 445

(requiring “explicit statutory . . . authorization” for See also BLACK’S LAW DICTIONARY

the taxation of costs not enumerated in 28 U.S.C. 601 (7th ed. 1999) (“express, adj. Clearly and

§ 1920(6)). unmistakably communicated; directly stated.”);

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY

See Maj. Op. at 18 (stating that “[i]t is 645 (Merriam-Webster 1998) (“1a: directly,

precisely due to such legitimate and practical firmly, and explicitly stated. b: EXACT, PRECISE.”)

reasons that district courts must also have the

inherent authority and discretion to tax guardian ad Crawford Fitting, 482 U.S. at 445,

litem fees as costs against nonprevailing parties,” speaks in terms of “explicit” authority. “Explicit”

and relying on a decision that describes rule 17(c) means “characterized by full clear expression :

as “silent on the subject”). being without vagueness or ambiguity : leaving

This flaw in the majority’s argument be- provisions dealing with both the appointment

comes all the more glaring when rule 17(c) is and the compensation of special masters con-

compared with rule 53, which governs the ap- stitute “explicit” authorization of the kind con-

pointment and compensation of masters. See templated in Crawford Fitting. Rule 17(c), in

FED. R. CIV. P. 53. The rules committee contrast, provides only for the appointment of

knows how to be explicit when it wishes to be, guardians ad litem. It says nothing whatso-

as rule 53 makes abundantly plain. ever about the means by which an appointed

guardian is to be compensated and, accord-

The newly revised rule 53(a)(3) provides ingly, does not contain the “explicit statutory

that “[i]n appointing a master, the court must authorization” the majority needs to reach its

consider the fairness of imposing the likely result.

expenses on the parties.” FED. R. CIV. P. 53-

(a)(3) (West 2004).27 Rule 53(h), by its own Ironically, this point is further illustrated by

title, expressly addresses the “compensation” the majority’s advocacy of one of its “alterna-

of masters. Subsection (h)(1) provides that tive” holdings. In arguing that Crawford Fit-

“[t]he court must fix the master’s compensa- ting is inapposite here, the majority claims that

tion before or after judgment on the basis and the federal rules are similar to state laws that

terms stated in the order of appointment.” provide for the compensation of guardians ad

FED. R. CIV. P. 53(h)(1). Subsection (h)(2) litem. See Maj. Op. at 28 & n.19. The critical

further specifies that the master’s compensa- difference, however, between federal law and

tion may be paid by either party or both, or the state laws relied on by the majority, is that

from a fund or subject matter of the action the latter all specifically and unambiguously

within the court’s control. FED. R. CIV. P. provide that guardian ad litem fees may be

53(h)(2). taxed as costs.

Thus, it is fair to say that rule 53’s express For example, the majority cites Alabama

Rule of Civil Procedure 17(d). Much like fed-

eral rule 17, Alabama’s rule 17(c) provides

nothing implied.” WEBSTER’S THIRD NEW INT ’L that a district court “shall appoint a guardian

DICTIONARY 801 (Merriam-Webster 1986). The ad litem (1) for a minor defendant, or (2) for

power identified by the district court no more fits an incompetent person not otherwise repre-

this definition than it does that of the word “ex-

sented in an action.” ALA. R. CIV. P. 17(c).

press.”

Unlike the federal rule, however, Alabama’s

Before its revision, rule 53(a)SSwhich rule also includes subpart (d), which provides:

was titled “Appointment and Compensation”SSpro-

vided that “[t]he compensation to be allowed to a In all cases in which a guardian ad litem is

master shall be fixed by the court, and shall be required, the court must ascertain a reason-

charged upon such of the parties . . . as the court able fee or compensation to be allowed and

may direct.” FED. R. CIV. P. 53(a) (West 2003). paid to such guardian ad litem for services

rendered in such cause, to be taxed as If the similarly worded state rules 17(c) al-

a part of the costs in such action, and ready “expressly” provided for that result,

which is to be paid when collected as these provisions would be wholly extraneous.

other costs in the action, to such The fact is that they are not. No matter how

guardian ad litem. much the majority thinks the practice in federal

courts should be the same as in these states,

ALA. R. CIV. P. 17(d) (cited in the Maj. Op. at rule 17(c) provides only for the appointment

28 n.19). of guardians ad litem, and there is no com-

mensurate federal rule or statute specifying the

Mississippi’s rules are similar. As with the manner in which their fees are to be paid. If

federal and Alabama rules, Mississippi has a that omission is bad policy, the power to craft

rule 17(c) that provides for the appointment of a solution lies solely in the hands of Congress

a guardian ad litem for unrepresented minors. and the drafters of the federal rules, not simply

MISS. R. CIV. P. 17(c). Just as in Alabama, but in the abusive “exercise [of] our authority as

unlike the federal rule, the appointment provi- an en banc Court.” Cf. Maj. Op. at 20.

sion is immediately followed by a section that

addresses the compensation of guardians: 2.

Having created for the district courts, out

In all cases in which a guardian ad litem is of whole cloth, the “inherent authority” to tax

required, the court must ascertain a reason- ad litem fees as costs, the next step in the ma-

able fee or compensation to be allowed and jority’s linguistic putsch is to find a way to

paid to such guardian ad litem for his ser- place that power into the text of the federal

vice rendered in such cause, to be taxed as rules. Cf. Maj. Op. at 17. The majority does

a part of the cost in such action. this by seizing on rule 17(c)’s provision that

the district courts shall “make such other order

MISS. R. CIV. P. 17(d).28 as it deems proper for the protection of the in-

fant or incompetent person.” Id. According

to the majority, “[t]his additional power is nec-

See also N.C. R. CIV. P. 17(b) essarily required so the district court can ef-

(providing that the court “may appoint some fectuate its appointment of a competent,

discreet person to act as guardian ad litem . . . and independent guardian ad litem.” Id.

fix and tax his fee as part of the costs”); TENN. R.

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

That argument is premised on a selective

allow the guardian ad litem a reasonable fee for

services, to be taxed as costs.”); TEX. R. CIV. P. quotation of rule 17(c). The full sentence re-

173 (“the court shall appoint a guardian ad litem lied on by the majority provides:

for such person and shall allow him a reasonable

fee for his services to be taxed as a part of the

costs.”). Further examples can be found in part III

of this dissent, addressing the majority’s second “alternative” to its main holding.

The court shall appoint a guardian ad litem on federal procedure succinctly explains that

for an infant or incompetent person not “the court may either appoint a guardian ad

otherwise represented in an action or shall litem or ‘make such other order as it deems

make such other order as it deems proper proper for the protection of the infant or

for the protection of the infant or incompe- incompetent person.’” 4 JAMES W. MOORE ET

tent person. AL., MOORE’S FEDERAL PRACTICE § 17.21-

[3][b] (Matthew Bender 3d ed.) (emphasis

FED. R. CIV. P. 17(c) (emphasis added). Con- added). Because it is used only as an alterna-

trary to the majority’s understanding, the plain tive to the appointment of a guardian ad litem,

meaning of this passage is that rule 17(c) af- the “other order” clause provides the majority

fords the district courts a choice between ap- no cover.

pointing an ad litem and issuing other orders

for the protection of the minor; it does not In short, then, the majority purports to rely

give the court the power to do both. on “express statutory authority” for the taxa-

tion of ad litem fees. Instead, it relies only on

Far from being a power given in furtherance an implied power that it creates and then

of the power to appoint an ad litem, the “other reads into a provision of the rules that can be

order” clause is a grant of discretion that invoked only when an ad litem is not ap-

enables the district court to protect the minor pointed.

without appointing a guardian. That reading

of rule 17(c) is not only plain on the face of B.

the text, but is confirmed by our decisions29 The majority’s first rationale is equally un-

and those of other circuits.30 A leading treatise convincing in its discussion of the govern-

ment’s claim to sovereign immunity. Even as-

suming, arguendo, that ad litem fees may be

See, e.g., Roberts v. Ohio Cas. Ins. Co. taxed as costs under some combination of

256 F.2d 35, 39 (5th Cir. 1958) (providing that a rules 17(c) and 54(d)(1), as the majority holds,

district court should usually appoint an ad litem, those costs can not automatically be taxed

but may instead “after weighing all the against the government as the losing party in

circumstances, issue such order as will protect the an action brought under the Federal Tort

minor in lieu of appointment of a guardian ad litem Claims Act (“FTCA”), 28 U.S.C. § 2671 et

. . . and may even decide that such appointment is seq. This is because the FTCASSas it is cur-

unnecessary”); Adelman ex rel. Adelman v.

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

(same).

interests may be protected in an alternative

See, e.g., Gardner by Gardner v. manner.”); Genesco, Inc. v. Cone Mills Corp., 604

Parson, 874 F.2d 131, 140 (3d Cir. 1989) (stating F.2d 281, 285 (4th Cir. 1979) (Rule 17(c) requires

that “under Rule 17(c), a court may appoint a the court either to appoint a guardian “or take other

guardian, or it may decline to do so if the child’s equivalent protective action”).

rently draftedSSdoes not waive the govern- costs under rule 17(c), sovereign immunity has

ment’s immunity from the taxation of costs not been waived and the costs may not be

and attorney’s fees. taxed against the government. Thus, the dis-

trict court’s order taxing ad litem fees must be

Rather, costs and attorneys’ fees may only reversed.

be taxed against the government to the extent

that immunity is waived by the Equal Access To avoid this straightforward resultSSwhich

to Justice Act (“EAJA”), 28 U.S.C. § 2412. is, evidently, so unpalatable to the majority

See Sanchez v. Rowe, 870 F.2d 291, 296 (5th that it will go to extraordinary lengths to avoid

Cir. 1989). The EAJA provides, in relevant itSSthe majority takes two approaches. In the

part: body of the opinion, it assesses sovereign

immunity using the correct statute, but holds

Except as otherwise specifically provided that “the inherent powers and responsibility

by statute, a judgment for costs, as enumer- under rule 17(c) to make such orders as the

ated in section 1920 of this title, but not court deems proper also constitute the alterna-

including the fees and expenses of attor- tive express statutory authorization to tax

neys, may be awarded to the prevailing par- guardian ad litem fees as costs to meet the

ty in any civil action brought by or against requirements of § 2412(a)(1) and defeat any

the United States. associated claim of sovereign immunity by the

nonprevailing government in an FTCA case.”

§ 2412(a)(1). That language unambiguously Maj. Op. at 19, 25. In contrast, the majority’s

provides that costs may be taxed against the footnotes take a completely different approach

United States only if they are among those and argue that immunity is waived by the

enumerated in 28 U.S.C. § 1920. Although terms of the FTCA itselfSSor rather, by the

§ 1920 lists a number of items of taxable costs, terms of the FTCA as it stood more than a half

it says nothing about guardian ad litem fees.31 century ago. See id. at 19 n.11 & 25-26 n.15

As a result, even if the majority is correct in (relying on language in 28 U.S.C. § 931(a)

holding that ad litem fees may be taxed as that was repealed in 1948).

There are several serious flaws in the major-

31 ity’s analysis. First, the majority mistakenly

I recognize that one of the majority’s

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

“alternative” holdings is that § 1920 enumerates

providing that there can be specific statutory

guardian ad litem fees as a taxable cost. I refute

that claim in part II. For present purposes, how- exceptions to the definition of costs as used in

ever, my discussion is focused only on the majori- the EAJA. Properly understood, that line pro-

ty’s first rationale, in which it posits that rule 17(c) vides something markedly different: that there

specifically provides both that ad litem fees may be are cases in which the government does not

taxed as costs, and that they may be taxed against waive its immunity from the taxation of costs.

the government under § 2412(a)(1). Second, the court further mangles the English

language by finding that rule 17(c) contains an not specified in § 1920. To the contrary, the

“express” waiver of immunity, despite recog- statute’s definition of costs as being those

nizing that it does not “specifically state” any- items that are enumerated in § 1920, but not

thing to that effect. Compare Maj. Op. at 19; including attorney’s fees, is absolute.

with id. at 18. Third, the court gives the fed-

eral rules an impermissibly broad mandate, and Instead, the phrase “Except as otherwise

then, fourth, ignores words of limitation that specifically provided by statute” only modifies

provide for exceptions to § 2412(a)(1) only as the statement that “a judgment for costs . . .

specified by “statute.” Finally, in what can may be awarded to the prevailing party in any

only be seen as a concession that its analysis of civil action brought by or against the United

§ 2412(a)(1) fails to pass muster, the majority States.” It provides that there may be instanc-

simply brushes that statute aside in preference es in which costs are not recoverable against

for language that was removed from the FTCA the United States, even though they are among

in 1948 and has since been replaced by other those enumerated in § 1920 and are not attor-

statutes. neys fees.32 The exception refers only to the

subject and predicate of the sentence: the com-

1. bined statement that a judgment for costs may

To begin with, the entire premise of the ma- be awarded against the United States. It does

jority’s discussion of sovereign immunity is not create an exception to the definition of

utterly flawed, because it is directed at proving costs as items that are “enumerated in § 1920

that ad litem fees fit a non-existent exception of this title, but not including the fees and

to the EAJA. This is a minor point, however, expenses of attorneys.”

so I will not belabor it.

So, the majority’s claim that it has identified

The court claims to find, in rule 17(c), a a specific, statutorily grounded exception to §

specific statutory exception to § 2412(a)(1)’s 2412(a)(1) is immaterial: any such exception

limited waiver of immunity. Even if the court can serve only to prevent the taxation of costs;

could show that its exception is both specific it can not serve to permit the taxation of things

and located in a statuteSSsomething it cannot

do, as explained in sub-parts 2 through 4, in-

fraSSit would not support the conclusion 32