Marx v. General Revenue Corp.

(Slip Opinion) OCTOBER TERM, 2012 1

Syllabus

NOTE: Where it is feasible, a syllabus (headnote) will be released, as is

being done in connection with this case, at the time the opinion is issued.

The syllabus constitutes no part of the opinion of the Court but has been

prepared by the Reporter of Decisions for the convenience of the reader.

See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.

SUPREME COURT OF THE UNITED STATES

Syllabus

MARX v. GENERAL REVENUE CORP.

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR

THE TENTH CIRCUIT

No. 11–1175. Argued November 7, 2012—Decided February 26, 2013

Petitioner Marx filed suit, alleging that General Revenue Corporation

(GRC) violated the Fair Debt Collection Practices Act (FDCPA) by

harassing and falsely threatening her in order to collect on a debt.

The District Court ruled against Marx and awarded GRC costs pur-

suant to Federal Rule of Civil Procedure (FRCP) 54(d)(1), which gives

district courts discretion to award costs to prevailing defendants

“[u]nless a federal statute . . . provides otherwise.” Marx sought to

vacate the award, arguing that the court’s discretion under Rule

54(d)(1) was displaced by 15 U. S. C. §1692k(a)(3), which provides, in

pertinent part, that “[o]n a finding by the court that an action under

this section was brought in bad faith and for the purpose of harass-

ment, the court may award to the defendant attorney’s fees reasona-

ble in relation to the work expended and costs.” The District Court

rejected Marx’s argument. The Tenth Circuit affirmed, in pertinent

part, agreeing that costs are allowed under the Rule and concluding

that nothing in the statute’s text, history, or purpose indicates that it

was meant to displace the Rule.

Held: Section §1692k(a)(3) is not contrary to, and, thus, does not dis-

place a district court’s discretion to award costs under, Rule 54(d)(1).

Pp. 4–16.

(a) Rule 54(d)(1) gives courts discretion to award costs to prevailing

parties, but this discretion can be displaced by a federal statute or

FRCP that “provides otherwise,” i.e., is “contrary” to Rule 54(d)(1).

Contrary to the argument of Marx and the United States, as amicus,

language of the original 1937 version of the Rule does not suggest

that any “express provision” for costs should displace Rule 54(d)(1),

regardless of whether it is contrary to the Rule. Pp. 4–7.

(b) Section 1692k(a)(3)’s language and context demonstrate that

2 MARX v. GENERAL REVENUE CORP.

Syllabus

the provision is not contrary to Rule 54(d)(1). Pp. 7–15.

(1) GRC argues that since §1692k(a)(3) does not address whether

costs may be awarded in an FDCPA case brought in good faith, it

does not set forth a standard that is contrary to the Rule and there-

fore does not displace the presumption that a court has discretion to

award costs. Marx and the United States concede that the statute

does not expressly limit a court’s discretion to award costs under the

Rule, but argue that it does so by negative implication. They claim

that unless §1692k(a)(3) sets forth the exclusive basis on which to

award costs, the phrase “and costs” would be superfluous with Rule

54(d)(1). And the United States also argues that §1692k(a)(3)’s more

specific cost statute displaces Rule 54(d)(1)’s more general rule.

Pp. 7–9.

(2) The argument of Marx and the United States depends criti-

cally on whether §1692k(a)(3)’s allowance of costs creates a negative

implication that costs are unavailable in any other circumstances.

The expressio unius canon that they invoke does not apply “unless it

is fair to suppose that Congress considered the unnamed possibility

and meant to say no to it,” Barnhart v. Peabody Coal Co., 537 U. S.

149, 168, and can be overcome by “contrary indications that adopting

a particular rule or statute was probably not meant to signal any ex-

clusion,” United States v. Vonn, 535 U. S. 55, 65. Here, context indi-

cates that Congress did not intend §1692k(a)(3) to foreclose courts

from awarding costs under the Rule. First, under the American Rule,

each litigant generally pays his own attorney’s fees, but the Court

has long recognized that federal courts have inherent power to award

attorney’s fees in a narrow set of circumstances, e.g., when a party

brings an action in bad faith. The statute is thus best read as codify-

ing a court’s pre-existing authority to award both attorney’s fees and

costs. Next, §1692k(a)(3)’s second sentence must be understood in

light of its first, which provides an award of attorney’s fees and costs,

but to prevailing plaintiffs. By adding “and costs” to the second sen-

tence, Congress foreclosed the argument that defendants can only re-

cover attorney’s fees when plaintiffs bring an action in bad faith and

removed any doubt that defendants may recover costs as well as at-

torney’s fees in such cases. Finally, §1692k(a)(3)’s language sharply

contrasts with that of other statutes in which Congress has placed

conditions on awarding costs to prevailing defendants. See, e.g., 28

U. S. C. §1928. Pp. 9–12.

(3) Even assuming that their surplusage argument is correct, the

canon against surplusage is not absolute. First, the canon “assists

only where a competing interpretation gives effect to every clause

and word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership, 564

U. S. ___, ___. Here, no interpretation of §1692k(a)(3) gives effect to

Cite as: 568 U. S. ____ (2013) 3

Syllabus

every word. Second, redundancy is not unusual in statutes address-

ing costs. See, e.g., 12 U. S. C. §2607(d)(5). Finally, the canon is

strongest when an interpretation would render superfluous another

part of the same statutory scheme. Because §1692k(a)(3) is not part

of Rule 54(d)(1), the force of this canon is diminished. Pp. 13–14.

(4) Lastly, contrary to the United States’ claim that specific cost-

shifting standards displace general ones, the context of the statute

indicates that Congress was simply confirming the background pre-

sumption that courts may award to defendants attorney’s fees and

costs when the plaintiff brings an action in bad faith. Because Marx

did not bring this suit in bad faith, the specific provision is not appli-

cable. Pp. 14–15.

668 F. 3d 1174, affirmed.

THOMAS, J., delivered the opinion of the Court, in which ROBERTS,

C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined.

SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined.

Cite as: 568 U. S. ____ (2013) 1

Opinion of the Court

NOTICE: This opinion is subject to formal revision before publication in the

preliminary print of the United States Reports. Readers are requested to

notify the Reporter of Decisions, Supreme Court of the United States, Wash-

ington, D. C. 20543, of any typographical or other formal errors, in order

that corrections may be made before the preliminary print goes to press.

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–1175

_________________

OLIVEA MARX, PETITIONER v. GENERAL REVENUE

CORPORATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[February 26, 2013]

JUSTICE THOMAS delivered the opinion of the Court.

Federal Rule of Civil Procedure 54(d)(1) gives district

courts discretion to award costs to prevailing defendants

“[u]nless a federal statute . . . provides otherwise.” The

Fair Debt Collection Practices Act (FDCPA), 91 Stat. 881,

15 U. S. C. §1692k(a)(3), provides that “[o]n a finding by

the court that an action under this section was brought

in bad faith and for the purpose of harassment, the court

may award to the defendant attorney’s fees reasonable in

relation to the work expended and costs.” This case pre-

sents the question whether §1692k(a)(3) “provides other-

wise” than Rule 54(d)(1). We conclude that §1692k(a)(3)

does not “provid[e] otherwise,” and thus a district court

may award costs to prevailing defendants in FDCPA cases

without finding that the plaintiff brought the case in bad

faith and for the purpose of harassment.

I

Petitioner Olivea Marx defaulted on a student loan

guaranteed by EdFund, a division of the California Stu-

dent Aid Commission. In September 2008, EdFund hired

respondent General Revenue Corporation (GRC) to collect

2 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

the debt. One month later, Marx filed an FDCPA en-

forcement action against GRC.1 Marx alleged that GRC

had violated the FDCPA by harassing her with phone calls

several times a day and falsely threatening to garnish up

to 50% of her wages and to take the money she owed

directly from her bank account. Shortly after the com-

plaint was filed, GRC made an offer of judgment under

Federal Rule of Civil Procedure 68 to pay Marx $1,500,

plus reasonable attorney’s fees and costs, to settle any

claims she had against it. Marx did not respond to the

offer. She subsequently amended her complaint to add

a claim that GRC unlawfully sent a fax to her workplace

that requested information about her employment status.

Following a 1-day bench trial, the District Court found

that Marx had failed to prove any violation of the FDCPA.

As the prevailing party, GRC submitted a bill of costs

seeking $7,779.16 in witness fees, witness travel expenses,

and deposition transcript fees. The court disallowed sev-

eral items of costs and, pursuant to Federal Rule of Civil

Procedure 54(d)(1), ordered Marx to pay GRC $4,543.03.

Marx filed a motion to vacate the award of costs, arguing

that the court lacked authority to award costs under Rules

54(d)(1) and 68(d) because 15 U. S. C. §1692k(a)(3) sets

forth the exclusive basis for awarding costs in FDCPA

cases.2 Section 1692k(a)(3) provides, in relevant part: “On

——————

1 The FDCPA is a consumer protection statute that prohibits certain

abusive, deceptive, and unfair debt collection practices. See 15 U. S. C.

§1692. The FDCPA’s private-enforcement provision, §1692k, author-

izes any aggrieved person to recover damages from “any debt collector

who fails to comply with any provision” of the FDCPA. §1692k(a).

2 Under Rule 68(d), if a defendant makes a settlement offer, and the

plaintiff rejects it and later obtains a judgment that is less favorable

than the one offered her, the plaintiff must pay the costs incurred by

the defendant after the offer was made. See Fed. Rule Civ. Proc. 68(d)

(“If the judgment that the offeree finally obtains is not more favorable

than the unaccepted offer, the offeree must pay the costs incurred after

the offer was made”).

Cite as: 568 U. S. ____ (2013) 3

Opinion of the Court

a finding by the court that an action under this section

was brought in bad faith and for the purpose of harass-

ment, the court may award to the defendant attorney’s

fees reasonable in relation to the work expended and costs.”

Marx argued that because the court had not found that

she brought the case in bad faith and for the purpose

of harassment, GRC was not entitled to costs. The Dis-

trict Court rejected Marx’s argument, concluding that

§1692k(a)(3) does not displace a court’s discretion to award

costs under Rule 54(d)(1) and that costs should also be

awarded under Rule 68(d).

The Tenth Circuit affirmed but agreed only with part

of the District Court’s reasoning. In particular, the court

disagreed that costs were allowed under Rule 68(d). 668

F. 3d 1174, 1182 (2011). It explained that “Rule 68 applies

only where the district court enters judgment in favor of

a plaintiff ” for less than the amount of the settlement offer

and not where the plaintiff loses outright. Ibid. (citing

Delta Air Lines, Inc. v. August, 450 U. S. 346, 352 (1981)).

Because the District Court had not entered judgment in

favor of Marx, the court concluded that costs were not

allowed under Rule 68(d). 668 F. 3d, at 1182. Neverthe-

less, the court found that costs were allowed under Rule

54(d)(1), which grants district courts discretion to award

costs to prevailing parties unless a federal statute or the

Federal Rules of Civil Procedure provide otherwise. Id., at

1178, 1182. After describing the “venerable” presumption

that prevailing parties are entitled to costs, id., at 1179,

the court concluded that nothing in the text, history, or

purpose of §1692k(a)(3) indicated that it was meant to

displace Rule 54(d)(1), id., at 1178–1182. Judge Lucero

dissented, arguing that “[t]he only sensible reading of

[§1692k(a)(3)] is that the district court may only award

costs to a defendant” upon finding that the action was

brought in bad faith and for the purpose of harassment

and that to read it otherwise rendered the phrase “and

4 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

costs” superfluous. Id., at 1187 (emphasis in original).

We granted certiorari, 566 U. S. ___ (2012), to resolve a

conflict among the Circuits regarding whether a prevailing

defendant in an FDCPA case may be awarded costs where

the lawsuit was not brought in bad faith and for the pur-

pose of harassment. Compare 668 F. 3d, at 1182 (case

below), with Rouse v. Law Offices of Rory Clark, 603 F. 3d

699, 701 (CA9 2010). We now affirm the judgment of the

Tenth Circuit.

II

As in all statutory construction cases, we “ ‘assum[e]

that the ordinary meaning of [the statutory] language

accurately expresses the legislative purpose.’ ” Hardt v. Re-

liance Standard Life Ins. Co., 560 U. S. ___, ___ (2010)

(slip op., at 8) (quoting Gross v. FBL Financial Services,

Inc., 557 U. S. 167, 175 (2009) (alteration in original)). In

this case, we must construe both Rule 54(d)(1) and

§1692k(a)(3) and assess the relationship between them.

A

Rule 54(d)(1) is straightforward. It provides, in relevant

part: “Unless a federal statute, these rules, or a court or-

der provides otherwise, costs—other than attorney’s fees—

should be allowed to the prevailing party.”

As the Tenth Circuit correctly recognized, Rule 54(d)(1)

codifies a venerable presumption that prevailing parties

are entitled to costs.3 Notwithstanding this presumption,

——————

3 Prior to the adoption of the federal rules, prevailing parties were

entitled to costs as of right in actions at law while courts had discretion

to award costs in equity proceedings. See Ex parte Peterson, 253 U. S.

300, 317–318 (1920) (“While in equity proceedings the allowance and

imposition of costs is, unless controlled by statute or rule of court, a

matter of discretion, it has been uniformly held that in actions at law

the prevailing party is entitled to costs as of right, except in those few

cases where by express statutory provision or by established principles

costs are denied” (citation omitted)); Mansfield, C. & L. M. R. Co. v.

Cite as: 568 U. S. ____ (2013) 5

Opinion of the Court

the word “should” makes clear that the decision whether

to award costs ultimately lies within the sound discretion

of the district court. See Taniguchi v. Kan Pacific Saipan,

Ltd., 566 U. S. ___, ___ (2012) (slip op., at 4) (“Federal

Rule of Civil Procedure 54(d) gives courts the discretion

to award costs to prevailing parties”). Rule 54(d)(1) also

makes clear, however, that this discretion can be displaced

by a federal statute or a Federal Rule of Civil Procedure

that “provides otherwise.”

A statute “provides otherwise” than Rule 54(d)(1) if it is

“contrary” to the Rule. See 10 J. Moore, Moore’s Federal

Practice §54.101[1][c], p. 54–159 (3d ed. 2012) (hereinafter

10 Moore’s). Because the Rule grants district courts dis-

cretion to award costs, a statute is contrary to the Rule if

it limits that discretion. A statute may limit a court’s dis-

cretion in several ways, and it need not expressly state

that it is displacing Rule 54(d)(1) to do so. For instance,

a statute providing that “plaintiffs shall not be liable for

costs” is contrary to Rule 54(d)(1) because it precludes a

court from awarding costs to prevailing defendants. See,

e.g., 7 U. S. C. §18(d)(1) (“The petitioner shall not be liable

for costs in the district court”). Similarly, a statute provid-

ing that plaintiffs may recover costs only under certain

conditions is contrary to Rule 54(d) because it precludes a

court from awarding costs to prevailing plaintiffs when

those conditions have not been satisfied. See, e.g., 28

U. S. C. §1928 (“[N]o costs shall be included in such judg-

ment, unless the proper disclaimer has been filed in the

United States Patent and Trademark Office”).

Importantly, not all statutes that provide for costs are

contrary to Rule 54(d)(1). A statute providing that “the

court may award costs to the prevailing party,” for exam-

——————

Swan, 111 U. S. 379, 387 (1884) (“[B]y the long established practice and

universally recognized rule of the common law, in actions at law, the

prevailing party is entitled to recover a judgment for costs . . . ”).

6 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

ple, is not contrary to the Rule because it does not limit a

court’s discretion. See 10 Moore’s §54.101[1][c], at 54–159

(“A number of statutes state simply that the court may

award costs in its discretion. Such a provision is not con-

trary to Rule 54(d)(1) and does not displace the court’s

discretion under the Rule”).

Marx and the United States as amicus curiae suggest

that any statute that specifically provides for costs dis-

places Rule 54(d)(1), regardless of whether it is contrary to

the Rule. Brief for Petitioner 17; Brief for United States

as Amicus Curiae 11–12 (hereinafter Brief for United

States). The United States relies on the original 1937

version of Rule 54(d)(1), which provided, “ ‘Except when

express provision therefor is made either in a statute of

the United States or in these rules, costs shall be allowed

as of course to the prevailing party unless the court oth-

erwise directs.’ ” Id., at 12 (quoting Rule). Though the

Rules Committee updated the language of Rule 54(d)(1) in

2007, the change was “stylistic only.” Advisory Commit-

tee’s Notes, 28 U. S. C. App., p. 734 (2006 ed., Supp. V).

Accordingly, the United States asserts that any “express

provision” for costs should displace Rule 54(d)(1).

We are not persuaded, however, that the original ver-

sion of Rule 54(d) should be interpreted as Marx and the

United States suggest. The original language was meant

to ensure that Rule 54(d) did not displace existing costs

provisions that were contrary to the Rule. Under the prior

language, statutes that simply permitted a court to award

costs did not displace the Rule. See 6 J. Moore, Moore’s

Federal Practice §54.71[1], p. 54–304 (2d ed. 1996)

(“[W]hen permissive language is used [in a statute regard-

ing costs] the district court may, pursuant to Rule 54(d),

exercise a sound discretion relative to the allowance of

costs”). Rather, statutes had to set forth a standard for

awarding costs that was different from Rule 54(d)(1) in

order to displace the Rule. See Friedman v. Ganassi, 853

Cite as: 568 U. S. ____ (2013) 7

Opinion of the Court

F. 2d 207, 210 (CA3 1988) (holding that 15 U. S. C. §77k(e)

is not an “express provision” under Rule 54(d) because it

does not provide an “alternative standard” for awarding

taxable costs). The original version of Rule 54(d) is con-

sistent with our conclusion that a statute must be contrary

to Rule 54(d)(1) in order to displace it.4

B

We now turn to whether §1692k(a)(3) is contrary to Rule

54(d)(1). The language of §1692k(a)(3) and the context

surrounding it persuade us that it is not.

1

The second sentence of §1692k(a)(3) provides: “On a

finding by the court that an action under this section was

——————

4 The dissent provides no stable definition of “provides otherwise.”

First, it argues that a statute “provides otherwise” if it is “different”

from Rule 54(d)(1). Post, at 2 (opinion of SOTOMAYOR, J.). That inter-

pretation renders the Rule meaningless because every statute is “dif-

ferent” insofar as it is not an exact copy of the Rule. Next, it argues

that a statute “provides otherwise” if it is an “ ‘express provision’

relating to costs.” Post, at 2–3. Under that view, a statute providing

that “the court may award costs to the prevailing party” would “provide

otherwise.” We do not think such a statute provides otherwise—it

provides “same-wise,” and the treatise on which the dissent relies

supports our view. See 10 C. Wright, A. Miller, & M. Kane, Federal

Practice and Procedure §2670, p. 258 (3d ed. 1998 and Supp. 2012)

(“[Statutes that] are permissive in character . . . are not inconsistent

with the discretion given the district court by Rule 54(d)”). Finally,

the dissent seems to implicitly accept that “otherwise” means “to the

contrary” in the course of arguing that a doctor’s instruction to take

medication “ ‘in the morning’ ” would supersede an instruction on the

medication label to “ ‘take [it] twice a day unless otherwise directed,’ ”

because the patient would understand the doctor’s advice to mean that

he should take the medicine “once a day, each morning.” Post, at 4. If

the patient understands the doctor to mean “once a day, each morning,”

we agree that such advice would “provide otherwise,” because the

doctor’s order would be “contrary” to the label’s instruction. For the

reasons set forth in Part II–B, however, we are not convinced that

§1692k(a)(3) is “contrary” to Rule 54(d)(1).

8 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

brought in bad faith and for the purpose of harassment,

the court may award to the defendant attorney’s fees

reasonable in relation to the work expended and costs.”5

GRC contends that the statute does not address whether

costs may be awarded in this case—where the plaintiff

brought the case in good faith—and thus it does not set

forth a standard for awarding costs that is contrary to

Rule 54(d)(1). In its view, Congress intended §1692k(a)(3)

to deter plaintiffs from bringing nuisance lawsuits. It,

therefore, expressly provided that when plaintiffs bring an

action in bad faith and for the purpose of harassment, the

court may award attorney’s fees and costs to the defend-

ant. The statute does address this type of case—i.e., cases

in which the plaintiff brings the action in bad faith and

for the purpose of harassment. But it is silent where bad

faith and purpose of harassment are absent, and silence

does not displace the background rule that a court has

discretion to award costs.

Marx and the United States take the contrary view.

They concede that the language does not expressly limit

a court’s discretion to award costs under Rule 54(d)(1),

Brief for Petitioner 10; Brief for United States 19, but

argue that it does so by negative implication. Invoking the

expressio unius canon of statutory construction, they

contend that by specifying that a court may award attor-

ney’s fees and costs when an action is brought in bad faith

and for the purpose of harassment, Congress intended to

preclude a court from awarding fees and costs when bad

faith and purpose of harassment are absent. They further

argue that unless §1692k(a)(3) sets forth the exclusive

——————

5 It is undisputed that GRC is not entitled to costs under §1692k(a)(3)

because the District Court did not find that Marx brought this action in

bad faith. But Rule 54(d)(1) independently authorizes district courts to

award costs to prevailing parties. The question in this case is not

whether costs are allowed under §1692k(a)(3) but whether §1692k(a)(3)

precludes an award of costs under Rule 54(d)(1).

Cite as: 568 U. S. ____ (2013) 9

Opinion of the Court

basis on which a court may award costs, the phrase “and

costs” would be superfluous. According to this argument,

Congress would have had no reason to specify that a court

may award costs when a plaintiff brings an action in

bad faith if it could have nevertheless awarded costs under

Rule 54(d)(1). Finally, the United States argues that

§1692k(a)(3) is a more specific cost statute that displaces

Rule 54(d)(1)’s more general rule.

The context surrounding §1692k(a)(3) persuades us that

GRC’s interpretation is correct.

2

The argument of Marx and the United States depends

critically on whether §1692k(a)(3)’s allowance of costs

creates a negative implication that costs are unavailable

in any other circumstances. The force of any negative

implication, however, depends on context. We have long

held that the expressio unius canon does not apply “unless

it is fair to suppose that Congress considered the unnamed

possibility and meant to say no to it,” Barnhart v. Peabody

Coal Co., 537 U. S. 149, 168 (2003), and that the canon

can be overcome by “contrary indications that adopting a

particular rule or statute was probably not meant to signal

any exclusion,” United States v. Vonn, 535 U. S. 55, 65

(2002). In this case, context persuades us that Congress

did not intend §1692k(a)(3) to foreclose courts from award-

ing costs under Rule 54(d)(1).

First, the background presumptions governing attorney’s

fees and costs are a highly relevant contextual feature.

As already explained, under Rule 54(d)(1) a prevailing

party is entitled to recover costs from the losing party

unless a federal statute, the Federal Rules of Civil Proce-

dure, or a court order “provides otherwise.” The opposite

presumption exists with respect to attorney’s fees. Under

the “bedrock principle known as the ‘ “American Rule,” ’ ”

“[e]ach litigant pays his own attorney’s fees, win or lose,

10 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

unless a statute or contract provides otherwise.” Hardt,

560 U. S., at ___ (slip op., at 9) (quoting Ruckelshaus v.

Sierra Club, 463 U. S. 680, 683 (1983)). Notwithstanding

the American Rule, however, we have long recognized that

federal courts have inherent power to award attorney’s

fees in a narrow set of circumstances, including when a

party brings an action in bad faith. See Chambers v.

NASCO, Inc., 501 U. S. 32, 45–46 (1991) (explaining that

a court has inherent power to award attorney’s fees to a

party whose litigation efforts directly benefit others, to

sanction the willful disobedience of a court order, and to

sanction a party who has acted in bad faith, vexatiously,

wantonly, or for oppressive reasons); Alyeska Pipeline

Service Co. v. Wilderness Society, 421 U. S. 240, 257–259

(1975) (same).

It is undisputed that §1692k(a)(3) leaves the back-

ground rules for attorney’s fees intact. The statute pro-

vides that when the plaintiff brings an action in bad

faith, the court may award attorney’s fees to the defendant.

But, as noted, a court has inherent power to award fees

based on a litigant’s bad faith even without §1692k(a)(3).

See Chambers, supra, at 45–46. Because §1692k(a)(3)

codifies the background rule for attorney’s fees, it is dubi-

ous to infer congressional intent to override the back-

ground rule with respect to costs. The statute is best read

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

attorney’s fees and costs.6

Next, the second sentence of §1692k(a)(3) must be un-

derstood in light of the sentence that precedes it.7 The

——————

6 Indeed, had Congress intended §1692k(a)(3) to foreclose a court’s

discretion to award costs, it could not have chosen a more circuitous

way to do so. The statute sets forth the circumstances in which a court

“may” award costs. But under Marx’s and the United States’ view, the

only consequence of the statute is to set forth the circumstances in

which it may not award costs.

7 Section 1692k(a) provides:

Cite as: 568 U. S. ____ (2013) 11

Opinion of the Court

first sentence of §1692k(a)(3) provides that defendants

who violate the FDCPA are liable for the plaintiff ’s attor-

ney’s fees and costs. The second sentence of §1692k(a)(3)

similarly provides that plaintiffs who bring an action in

bad faith and for the purpose of harassment may be liable

for the defendant’s fees and costs.

If Congress had excluded “and costs” in the second sen-

tence, plaintiffs might have argued that the expression of

costs in the first sentence and the exclusion of costs in

the second meant that defendants could only recover

attorney’s fees when plaintiffs bring an action in bad faith.

By adding “and costs” to the second sentence, Congress

foreclosed that argument, thereby removing any doubt

that defendants may recover costs as well as attorney’s

fees when plaintiffs bring suits in bad faith. See Ali v.

Federal Bureau of Prisons, 552 U. S. 214, 226 (2008) (ex-

plaining that a phrase is not superfluous if used to “re-

move . . . doubt” about an issue); Fort Stewart Schools v.

FLRA, 495 U. S. 641, 646 (1990) (explaining that “techni-

cally unnecessary” examples may have been “inserted out

——————

“Except as otherwise provided by this section, any debt collector who

fails to comply with any provision of this subchapter with respect to

any person is liable to such person in an amount equal to the sum of—

“(1) any actual damages sustained by such person as a result of such

failure;

“(2)(A) in the case of any action by an individual, such additional

damages as the court may allow, but not exceeding $1,000; or

“(B) in the case of a class action, (i) such amount for each named

plaintiff as could be recovered under subparagraph (A), and (ii) such

amount as the court may allow for all other class members, without

regard to a minimum individual recovery, not to exceed the lesser of

$500,000 or 1 per centum of the net worth of the debt collector; and

“(3) in the case of any successful action to enforce the foregoing

liability, the costs of the action, together with a reasonable attorney’s

fee as determined by the court. On a finding by the court that an action

under this section was brought in bad faith and for the purpose of

harassment, the court may award to the defendant attorney’s fees

reasonable in relation to the work expended and costs.”

12 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

of an abundance of caution”). The fact that there might

have been a negative implication that costs are precluded,

depending on whether Congress included or excluded the

phrase “and costs,” weighs against giving effect to any

implied limitation.

Finally, the language in §1692k(a)(3) sharply contrasts

with other statutes in which Congress has placed condi-

tions on awarding costs to prevailing defendants. See, e.g.,

28 U. S. C. §1928 (“[N]o costs shall be included in such

judgment, unless the proper disclaimer has been filed in

the United States Patent and Trademark Office prior to

the commencement of the action” (emphasis added)); 42

U. S. C. §1988(b) (“[I]n any action brought against a judi-

cial officer . . . such officer shall not be held liable for any

costs . . . unless such action was clearly in excess of such

officer’s jurisdiction” (emphasis added)).

Although Congress need not use explicit language to

limit a court’s discretion under Rule 54(d)(1), its use of

explicit language in other statutes cautions against infer-

ring a limitation in §1692k(a)(3). These statutes confirm

that Congress knows how to limit a court’s discretion

under Rule 54(d)(1) when it so desires. See Small v. United

States, 544 U. S. 385, 398 (2005) (THOMAS, J., dissent-

ing) (explaining that “Congress’ explicit use of [language]

in other provisions shows that it specifies such restrictions

when it wants to do so”). Had Congress intended the

second sentence of §1692k(a)(3) to displace Rule 54(d)(1),

it could have easily done so by using the word “only” be-

fore setting forth the condition “[o]n a finding by the court

that an action . . . was brought in bad faith and for the

purpose of harassment . . . .”8

——————

8 Marx also suggests that §1692k(a)(3) is similar to the Pipeline

Safety Act, 49 U. S. C. §60121(b), which provides: “The court may award

costs to a prevailing defendant when the action is unreasonable, frivo-

lous, or meritless.” We have never had occasion to interpret §60121(b)

and its interaction with Rule 54(d)(1).

Cite as: 568 U. S. ____ (2013) 13

Opinion of the Court

3

As the above discussion suggests, we also are not per-

suaded by Marx’s objection that our interpretation renders

the phrase “and costs” superfluous. As noted, supra, at 11,

the phrase “and costs” would not be superfluous if Con-

gress included it to remove doubt that defendants may

recover costs when plaintiffs bring suits in bad faith. But

even assuming that our interpretation renders the phrase

“and costs” superfluous, that would not alter our conclu-

sion. The canon against surplusage is not an absolute

rule, see Arlington Central School Dist. Bd. of Ed. v. Mur-

phy, 548 U. S. 291, 299, n. 1 (2006) (“While it is generally

presumed that statutes do not contain surplusage, in-

stances of surplusage are not unknown”); Connecticut Nat.

Bank v. Germain, 503 U. S. 249, 253 (1992) (“Redundan-

cies across statutes are not unusual events in drafting

. . . ”), and it has considerably less force in this case.

First, the canon against surplusage “assists only where

a competing interpretation gives effect to every clause and

word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership,

564 U. S. ___, ___ (2011) (slip op., at 12) (internal quota-

tion marks omitted). But, in this case, no interpretation of

§1692k(a)(3) gives effect to every word. Both Marx and

the United States admit that a court has inherent power

to award attorney’s fees to a defendant when the plaintiff

brings an action in bad faith. Because there was, conse-

quently, no need for Congress to specify that courts have

this power, §1692k(a)(3) is superfluous insofar as it ad-

dresses attorney’s fees. In light of this redundancy, we are

not overly concerned that the reference to costs may be

redundant as well.

Second, redundancy is “hardly unusual” in statutes

addressing costs. See id., at ___ (slip op., at 13). Numer-

ous statutes overlap with Rule 54(d)(1). See, e.g., 12

U. S. C. §2607(d)(5) (“[T]he court may award to the pre-

vailing party the court costs of the action”); §5565(b) (2006

14 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

ed., Supp. V) (“the [Consumer Financial Protection] Bu-

reau . . . may recover its costs in connection with prosecut-

ing such action if [it] . . . is the prevailing party in the

action”); 15 U. S. C. §6104(d) (2006 ed.) (“The court . . .

may award costs of suit and reasonable fees for attorneys

and expert witnesses to the prevailing party”); §7706(f )(4)

(“In the case of any successful action . . . the court, in its

discretion, may award the costs of the action”); §7805(b)(3)

(“[T]he court may award to the prevailing party costs”);

§8131(2) (2006 ed., Supp. V) (“The court may also, in its

discretion, award costs and attorneys fees to the prevail-

ing party”); 29 U. S. C. §431(c) (2006 ed.) (“The court . . .

may, in its discretion . . . allow a reasonable attorney’s fee

to be paid by the defendant, and costs of the action”); 42

U. S. C. §3612(p) (“[T]he court . . . in its discretion, may

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

and costs”); §3613(c)(2) (“[T]he court, in its discretion, may

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

and costs”); 47 U. S. C. §551(f)(2) (“[T]he court may award

. . . other litigation costs reasonably incurred”).

Finally, the canon against surplusage is strongest when

an interpretation would render superfluous another part

of the same statutory scheme. Cf. United States v. Jica-

rilla Apache Nation, 564 U. S. ___, ___ (2011) (slip op., at

22) (“ ‘As our cases have noted in the past, we are hesitant

to adopt an interpretation of a congressional enactment

which renders superfluous another portion of that same

law’ ” (quoting Mackey v. Lanier Collection Agency &

Service, Inc., 486 U. S. 825, 837 (1988))). Because

§1692k(a)(3) is not part of Rule 54(d)(1), the force of this

canon is diminished.

4

Lastly, the United States contends that §1692k(a)(3)

“establishes explicit cost-shifting standards that displace

Rule 54(d)(1)’s more general default standard.” Brief for

Cite as: 568 U. S. ____ (2013) 15

Opinion of the Court

United States 17; see also EC Term of Years Trust v.

United States, 550 U. S. 429, 433 (2007) (“ ‘[A] precisely

drawn, detailed statute pre-empts more general reme-

dies’ ” (quoting Brown v. GSA, 425 U. S. 820, 834 (1976))).

Were we to accept the argument that §1692k(a)(3) has a

negative implication, this argument might be persuasive.

But the context of §1692k(a)(3) indicates that Congress

was simply confirming the background rule that courts

may award to defendants attorney’s fees and costs when

the plaintiff brings an action in bad faith. The statute

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

harassing plaintiff. Because Marx did not bring this suit

in bad faith, this case does not “fal[l] within the ambit of

the more specific provision.” Brief for United States 13;

see also RadLAX Gateway Hotel, LLC v. Amalgamated

Bank, 566 U. S. ___, ___ (2012) (slip op., at 9) (“When the

conduct at issue falls within the scope of both provisions,

the specific presumptively governs . . .” (emphasis in origi-

nal)).9 Accordingly, this canon is inapplicable.

III

Because we conclude that the second sentence of

§1692k(a)(3) is not contrary to Rule 54(d)(1), and, thus,

——————

9 Marx, the United States, and GRC also spar over the purpose of

§1692k(a)(3). Brief for Petitioner 14–16; Brief for United States 21–28;

Reply Brief 11–14; Brief for Respondent 30–43. Marx and the United

States contend that Congress intended to limit a court’s discretion to

award costs to prevailing defendants because FDCPA plaintiffs are

often poor and may be deterred from challenging unlawful debt collec-

tion practices by the possibility of being held liable for the defendant’s

costs. This purposive argument cannot overcome the language and

context of §1692k(a)(3), but even if it could, we find it unpersuasive.

Rule 54(d)(1) does not require courts to award costs to prevailing

defendants. District courts may appropriately consider an FDCPA

plaintiff’s indigency in deciding whether to award costs. See Badillo v.

Central Steel & Wire Co., 717 F. 2d 1160, 1165 (CA7 1983) (“[I]t is

within the discretion of the district court to consider a plaintiff’s indi-

gency in denying costs under Rule 54(d)”).

16 MARX v. GENERAL REVENUE CORP.

Opinion of the Court

does not displace a district court’s discretion to award

costs under the Rule, we need not address GRC’s alterna-

tive argument that costs were required under Rule 68.

The judgment of the Court of Appeals is affirmed.

It is so ordered.

Cite as: 568 U. S. ____ (2013) 1

SOTOMAYOR, J., dissenting

SUPREME COURT OF THE UNITED STATES

_________________

No. 11–1175

_________________

OLIVEA MARX, PETITIONER v. GENERAL REVENUE

CORPORATION

ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF

APPEALS FOR THE TENTH CIRCUIT

[February 26, 2013]

JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,

dissenting.

Federal Rule of Civil Procedure 54(d)(1) is a default

standard that grants district courts discretion to award

litigation costs to a prevailing party. This default, how-

ever, gives way when a federal statute includes a costs

provision that “provides otherwise.” The Fair Debt Collection

Practices Act (FDCPA), 91 Stat. 874, 15 U. S. C. §1692

et seq., contains a costs provision, §1692k(a)(3), and it

“provides otherwise.” That is apparent from the statute’s

plain language, which limits a court’s discretion to award

costs to prevailing defendants to cases “brought in bad

faith and for the purpose of harassment.” In reaching the

opposite conclusion, the Court ignores the plain meaning

of both the FDCPA and Rule 54(d)(1) and renders the

statutory language at issue in this case meaningless. I

respectfully dissent.

I

The majority correctly recognizes, see ante, at 4, the

fundamental principle of statutory construction that we

begin “with the language of the statute itself.” United

States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241

(1989); Ingalls Shipbuilding, Inc. v. Director, Office of

Workers’ Compensation Programs, 519 U. S. 248, 255

2 MARX v. GENERAL REVENUE CORP.

SOTOMAYOR, J., dissenting

(1997); Caminetti v. United States, 242 U. S. 470, 485

(1917). We presume that Congress “means in a statute

what it says there,” Connecticut Nat. Bank v. Germain,

503 U. S. 249, 254 (1992), and “where . . . the statute’s

language is plain, the sole function of the courts is to

enforce it according to its terms.” Ron Pair, 489 U. S., at

241 (internal quotation marks omitted). This basic tenet

is the appropriate starting point for interpreting both Rule

54(d)(1) and §1692k(a)(3). After invoking this principle,

however, the majority casts it aside entirely in interpret-

ing the statute and the Rule.

A

Rule 54(d)(1) states, as relevant here, that “[u]nless a

federal statute . . . provides otherwise, costs—other than

attorney’s fees—should be allowed to the prevailing

party.” The first question is what it means for a statute

to “provid[e] otherwise” than Rule 54(d)(1).

Because the phrase “provides otherwise” is not defined

in the Federal Rules of Civil Procedure, we look to its

ordinary meaning. Asgrow Seed Co. v. Winterboer, 513

U. S. 179, 187 (1995). In common usage, to “provide oth-

erwise” means to “make a . . . stipulation” that is “differ-

en[t].” Webster’s Third New International Dictionary

1598, 1827 (2002) (Webster’s Third) (defining “provide”

and “otherwise,” respectively); see Random House Diction-

ary of the English Language 1372, 1556 (2d ed. 1987)

(Random House) (“to arrange for or stipulate” “[i]n another

manner”); 10 Oxford English Dictionary 984 (2d ed. 1989)

(Oxford Dictionary); 12 id., at 713 (“to stipulate” “[i]n

another way . . . ; in a different manner”). This reading of

the plain text is confirmed by the original 1937 codifica-

tion of the Rule, which made clear that any “express pro-

vision” relating to costs in a statute is sufficient to displace

Cite as: 568 U. S. ____ (2013) 3

SOTOMAYOR, J., dissenting

the default.1

Accordingly, to displace Rule 54(d)(1), a federal statute

need only address costs in a way different from, but not

necessarily inconsistent with, the default.2 The reason is

straightforward. If Congress has enacted a provision with

respect to costs in a statute, there is no longer any need

for the default, so it gives way. This design of the Rule is

sensible, because many statutes contain specific costs

provisions. 10 Moore’s Federal Practice §54.101[1][c], p.

54–160 (3d ed. 2012) (noting that such statutes “are far

too numerous to list comprehensively”). Rule 54(d)(1) is

therefore consistent with the canon of statutory interpre-

tation that “a precisely drawn, detailed statute pre-empts

more general remedies.” Hinck v. United States, 550 U. S.

501, 506 (2007); Crawford Fitting Co. v. J. T. Gibbons,

Inc., 482 U. S. 437, 445 (1987); United States v. Erika,

Inc., 456 U. S. 201, 208 (1982).

While purporting to interpret the “ordinary meaning” of

Rule 54(d)(1), ante, at 4, the majority immediately aban-

dons the ordinary meaning. The majority concludes that a

statute provides otherwise for purposes of Rule 54(d)(1)

only if it is “contrary” to the default. Ante, at 5. But the

——————

1 The original codification of the Rule provided that “[e]xcept when

express provision therefor is made either in a statute of the United

States or in these rules, costs shall be allowed as of course to the

prevailing party unless the court otherwise directs.” Ante, at 6 (quoting

the Rule; emphasis added; internal quotation marks omitted). The

language in the Rule was later revised to its current form in 2007, but

as the majority acknowledges, the Rules Committee indicated the

changes were “ ‘stylistic only.’ ” Ibid. (quoting Advisory Committee’s

Notes, 28 U. S. C. App., p. 734 (2006 ed., Supp. V)).

2 See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Proce-

dure §2665, p. 200 (3d ed. 1998 and Supp. 2012) (hereinafter Wright &

Miller) (Rule 54 “provides that ordinarily the prevailing party shall be

allowed costs other than attorney’s fees unless . . . some other provision

for costs is made by a federal statute or the civil rules” (emphasis

added)).

4 MARX v. GENERAL REVENUE CORP.

SOTOMAYOR, J., dissenting

majority does not cite even a single dictionary definition

in support of that reading, despite the oft-cited principle

that a definition widely reflected in dictionaries generally

governs over other possible meanings.3 Lacking any dic-

tionary support for its interpretation, the majority relies

instead upon a treatise published nearly 60 years after the

Rule’s adoption. See ante, 6–7 (citing 6 J. Moore, Moore’s

Federal Practice, p. 54–304 (2d ed. 1996)).

“Otherwise” means “different.” Webster’s Third 1518;

see supra, at 2–3. The majority’s preferred term of art,

“contrary,” sets a higher bar; it signifies “the opposite,”

or “a proposition, fact, or condition incompatible with an-

other.” Webster’s Third 495 (emphasis added). See also

American Heritage Dictionary of the English Language

399 (5th ed. 2011) (“Opposed, as in character or purpose”);

3 Oxford Dictionary 844 (“Opposed in nature or tendency;

diametrically different, extremely unlike”); Random House

442 (“[O]pposite in nature or character; diametrically or

mutually opposed”).

Indeed, the majority’s reading does not square with the

everyday meaning of “otherwise.” Consider, for example, a

medication labeled with the instruction, “take twice a day

unless otherwise directed.” If a doctor advises her patient

to take the medicine “in the morning,” the patient would

understand her to mean that he should take the medicine

once a day, each morning. Although the instruction to

take the medication in the morning is not incompatible

with taking it twice a day—it could be taken in the even-

ing as well—an ordinary English speaker would interpret

“otherwise” to mean that the doctor’s more specific in-

——————

3 See, e.g., MCI Telecommunications Corp. v. American Telephone &

Telegraph Co., 512 U. S. 218, 225 (1994) (opinion for the Court by

SCALIA, J.) (rejecting the argument that an alternative definition should

control the meaning of “modify” where “[v]irtually every dictionary we

are aware of says that ‘to modify’ means to change moderately or in

minor fashion”).

Cite as: 568 U. S. ____ (2013) 5

SOTOMAYOR, J., dissenting

structions entirely supersede what is printed on the bottle.

Rule 54(d)(1) is just the same: Its default is supplanted

whenever Congress provides more specific instructions,

not only when they are diametrically opposed to it.

B

1

Thus, the straightforward question in this case is

whether §1692k(a)(3) implements a “different” standard

with respect to costs than Rule 54(d)(1), and so “provides

otherwise.” As relevant, §1692k(a)(3) states: “On a finding

by the court that an action under this section was brought

in bad faith and for the purpose of harassment, the court

may award to the defendant attorney’s fees reasonable in

relation to the work expended and costs.”

It is readily apparent that this provision is different

from the default of Rule 54(d)(1). In §1692k(a)(3), Con-

gress described with specificity a single circumstance in

which costs may be awarded. Far from merely restating a

district court’s discretion to award costs, this provision

imposes a prerequisite to the exercise of that discretion: a

finding by the court that an action was brought in bad

faith and for the purpose of harassment.

Because the text is plain, there is no need to proceed

any further. Even so, relevant canons of statutory inter-

pretation lend added support to reading §1692k(a)(3) as

having a negative implication. That reading accords with

the expressio unius, exclusio alterius canon, which in-

structs that when Congress includes one possibility in a

statute, it excludes another by implication. See Chevron

U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80–81 (2002).

This rule reinforces what the text makes clear. By limit-

ing a court’s discretion to award costs to cases brought in

bad faith or for the purpose of harassment, Congress

6 MARX v. GENERAL REVENUE CORP.

SOTOMAYOR, J., dissenting

foreclosed the award of costs in other circumstances.4

Petitioner’s interpretation of the statute is also strongly

favored by the rule that statutes should be read to avoid

superfluity. Under this “most basic of interpretative

canons, . . . ‘ “[a] statute should be constructed so that

effect is given to all of its provisions, so that no part will be

inoperative or superfluous, void or insignificant.” ’ ” Corley

v. United States, 556 U. S. 303, 314 (2009) (quoting Hibbs

v. Winn, 542 U. S. 88, 101 (2004)). Respondent’s reading,

as it mostly acknowledges, renders the entire sentence

meaningless because it reiterates powers that federal

courts already possess with respect to both costs and

attorney’s fees. See Brief for Respondent 22–24.

The majority rejects this argument, citing the rule that

this canon “ ‘assists only where a competing interpretation

gives effect to every clause and word of a statute.’ ” Ante,

at 13 (quoting Microsoft Corp. v. i4i Ltd. Partnership, 564

U. S. ___, ___ (2011) (slip op., at 12)). In its view, neither

of the available interpretations can eliminate superfluity

because the attorney’s fees provision is redundant under

any reading. Ante, at 13. But the canon against super-

fluity surely counsels against an interpretation that renders

the entire provision at issue superfluous when a compet-

ing interpretation would at least render part of the provi-

sion meaningful. Nor does the majority’s observation that

redundancy is “ ‘hardly unusual,’ ” ante, at 14, in provi-

sions relating to costs make the canon inapplicable. While

——————

4 The majority suggests that this canon does not apply to §1692k(a)(3)

because it only aids where “ ‘it is fair to suppose that Congress consid-

ered the unnamed possibility and meant to say no to it.’ ” Ante, at 9

(quoting Barnhart v. Peabody Coal Co., 537 U. S. 149, 168 (2003)). The

best evidence of congressional intent, however, is the statutory text

that Congress enacted. West Virginia Univ. Hospitals, Inc. v. Casey,

499 U. S. 83, 98 (1991). And here, the plain language of §1692k(a)(3)

makes it clear that Congress meant to foreclose other possible mean-

ings. See supra, at 5.

Cite as: 568 U. S. ____ (2013) 7

SOTOMAYOR, J., dissenting

Congress sometimes drafts redundant language with

respect to costs, Congress did not do so in §1692(a)(3).5

Instead, it drafted specific language that permits a court

to award costs only on the satisfaction of a condition.

Interpreting §1692k(1)(3) as having a negative implica-

tion is consistent with our construction of another statute

that includes similar language. In Cooper Industries, Inc.

v. Aviall Services, Inc., 543 U. S. 157, 166 (2004) (opinion

for the Court by THOMAS, J.), we considered a provision in

the Comprehensive Environmental Response, Compensa-

tion, and Liability Act of 1980, 42 U. S. C. §9613(f)(1) that

provided: “[a]ny person may seek contribution . . . during

. . . any civil action under section 9606 of this title” (em-

phasis added). We rejected the argument that the word

“may” indicated that “during a civil action” was one but

not the exclusive circumstance in which the right of con-

tribution was available. 543 U. S., at 166. We instead

adopted the natural reading of the text, holding that a

party’s ability to seek contribution was limited by the

phrase “during any civil action” and that contribution was

only available while a lawsuit is pending. Ibid. The same

logic applies here, because §1692k(a)(3) imposes a closely

analogous condition on a court’s discretion to award costs.

2

The first sentence of §1692k(a)(3) underscores that

Congress implemented a different rule than Rule 54(d)(1).

That sentence provides that a debt collector who violates

the FDCPA is “liable to” a prevailing plaintiff for “the

——————

5 See, e.g., 15 U. S. C. § 6104(d) (Telemarketing and Consumer Fraud

and Abuse Prevention Act) (“The court . . . may award costs of suit and

reasonable fees for attorneys and expert witnesses to the prevailing

party”); 42 U. S. C. §3613(c)(2) (Fair Housing Act) (“In a civil action . . .

the court, in its discretion, may allow the prevailing party . . . a reason-

able attorney’s fee and costs”); see also 28 U. S. C. §1332(b) (failure to

recover jurisdictional amount).

8 MARX v. GENERAL REVENUE CORP.

SOTOMAYOR, J., dissenting

costs of the action, together with a reasonable attorney’s

fee as determined by the court.” This sentence makes a

losing defendant always liable for the “costs of the action,”

which is a clear departure from the Rule 54(d)(1) discre-

tionary default. Cf. Taniguchi v. Kan Pacific Saipan, Ltd.,

566 U. S. ___, ___ (2012) (slip op., at 4). Because Congress

deviated from Rule 54(d)(1) in the first sentence of

§1692k(a)(3), the most reasonable reading is that the

sentence that immediately follows, which states the rule

for prevailing defendants, takes a similar path.

The majority believes that its reading of the costs provi-

sion follows from the first sentence as well, but for a dif-

ferent reason. Ante, at 11–12. It suggests that if Congress

had not included costs in the second sentence, a plaintiff

might have been able to argue that the inclusion of costs

in the first sentence and the exclusion of costs in the

second indicated that defendants could recover only fees

when an action is brought in bad faith. The majority then

speculates that Congress included costs in the second

sentence to foreclose that argument.

The text of the previous sentence makes plain, however,

that the second sentence departs from the Rule 54(d)(1)

default, and the majority offers no evidence in support of

its supposition that Congress intended a different mean-

ing.6 Moreover, I see no basis for invoking potential con-

——————

6 The majority does not explain why its speculation about legislative

intent is more persuasive than the Solicitor General’s view that sad-

dling potential plaintiffs with costs would undermine the FDCPA’s

“ ‘calibrated scheme’ ” of enforcement. Brief for United States as Ami-

cus Curiae 10 (quoting Jerman v. Carlisle, McNellie, Rini, Kramer &

Ulrich, L. P. A., 559 U. S. 573, ___ (2010) (slip op., at 29)). Under the

Solicitor General’s interpretation, because the recoveries in these cases

are not certain to be large, consumers may be deterred from bringing

FDCPA claims if they are faced with the risk of paying costs. See Brief

for United States 21–28. This outcome would thwart Congress’s

expectation that the FDCPA was to be primarily enforced by consum-

ers. Ibid.

Cite as: 568 U. S. ____ (2013) 9

SOTOMAYOR, J., dissenting

fusion or indulging in speculation to explain away the

words Congress chose. Ante, at 11–12. Some Members of

the majority have expressed doubt about the relevance of

legislative history, claiming that relying upon it is analo-

gous to “entering a crowded cocktail party and looking . . .

for one’s friends.” Conroy v. Aniskoff, 507 U. S. 511, 519

(1993) (SCALIA, J., concurring in judgment). But speculat-

ing whole cloth about congressional intent, as the majority

does, is surely more problematic. The majority is saved

the trouble of having to look for its friends at the party; it

simply invites them.

II

Reduced to its essence, the majority’s analysis turns on

reading §1692k(a)(3) in the context of what it calls the

“venerable presumption” that prevailing parties are enti-

tled to costs. See ante, at 4. Even if it were appropriate to

consider a background presumption rather than reading

the plain text at issue, the majority’s characterization of

the presumption is at best incomplete.

First, the Court’s suggestion that the presumption

regarding costs is a “venerable” one in American law is an

overstatement. Ibid. It is true, as the majority points out,

that prior to the federal rules, “prevailing parties were

entitled to costs as of right in actions at law while courts

had discretion to award costs in equity proceedings.” Ante,

at 4, n. 3; see Wright & Miller §2665, at 199. But the

doctrine governing costs at law carved out an important

exception for statutory provisions that set forth a differ-

ent rule.7 Where there was such a statute, courts would

——————

7 See Ex parte Peterson, 253 U. S. 300, 318 (1920) (“[I]n actions at law

the prevailing party is entitled to costs as of right . . . , except in those

few cases where by express statutory provision or established principles

costs are denied” (emphasis added)); see also United States v. Tread-

well, 15 F. 532, 534 (SDNY 1883) (“[T]he prevailing party shall be

entitled to costs in all cases, unless otherwise expressly provided by law”

10 MARX v. GENERAL REVENUE CORP.

SOTOMAYOR, J., dissenting

simply apply it. In its assessment of the background princi-

ples underlying its approach, the majority glosses over the

longstanding expectation that Congress often enacts dif-

ferent rules with respect to costs, and when it does, these

rules govern.

Second, Rule 54(d)(1) embraces this long-recognized

exception because it specifies that a statute can displace

its default rule. To repeat, Rule 54(d)(1) merely enacts a

default standard that applies unless, among other things,

a statute or rule “provides otherwise.” Here, for the rea-

sons explained, Congress enacted exactly such a statute.

That is clear from the text, because §1692k(a)(3) condi-

tions the award of costs on the satisfaction of a condition,

and because the previous sentence of the same provision

breaks from the default.

* * *

The plain text of Rule 54(d)(1) and §1692k(a)(3) dictates

the result in this case. Accordingly, I would reverse the

Tenth Circuit and hold that §1692k(a)(3) “provides other-

wise” than Rule 54(d)(1), such that a district court cannot

award costs to a prevailing defendant in an FDCPA action

except upon a showing that the action was brought in bad

faith and for the purpose of harassment. I respectfully

dissent.

——————

(emphasis added, internal quotation marks omitted)); Payne, Costs in

Common Law Actions in the Federal Courts, 21 Va. L. Rev. 397, 430

(1934) (“By reason of the numerous changes in the acts of Congress

respecting costs, many of the older cases are not now safe precedents.

Care should be exercised, therefore, to make an intelligent use of the

cases decided prior to the enactment of various statutes”).