Gaddis v. United States
381 F.3d 444
5th Cir.
2003
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Docket
Case Information

*3 Before H IGGINBOTHAM , S MITH , and ther, it argues that guardian ad litem fees are

C LEMENT , Circuit Judges. not taxable costs at all or at least not against the United States. We review this question of P ER C URIAM : [*] law de novo . Roe v. Tex. Dep’t of Protective

& Regulatory Servs. , 299 F.3d 395, 400 (5th

The United States appeals a judgment or- Cir. 2002).

dering it to pay guardian ad litem fees as a tax-

able cost. Based on our precedents, we affirm. The government contends, in four steps,

that no rule or statute authorizes a court to tax Carlton and Latanza Gaddis were stopped guardian ad litem fees as costs against a losing at a street intersection when a postal employee party. Rule 54(d)(1) states that “costs other drove his government vehicle into theirs. La- than attorneys’ fees shall be allowed as of tanza, who was pregnant, initially suffered course to the prevailing party unless the court minor discomfort, but a few weeks later she otherwise directs[.]” F ED . R. C IV . P. 54(d)(1). prematurely delivered their son, Courtlin, with Next, the Supreme Court has held that “[28 serious birth defects. The Gaddises sued the U.S.C.] § 1920 defines the term ‘costs’ as United States under the Federal Tort Claims used in rule 54(d).” Crawford Fitting Co. v. Act (“FTCA”), 28 U.S.C. § 2671 et seq. , for J.T. Gibbons, Inc. , 482 U.S. 437, 441 (1987). negligence. They requested, and the district Sect ion 1920, in turn, lists several items but court appointed, a guardian ad litem for does not include guardian ad litem fees. Thus, Courtlin. [1] After a bench trial, the court found the government concludes, the court may not the United States liable for Courtlin’s injuries tax the fees as costs against the losing party. and awarded the Gaddises over $4 million in

damages. The court also taxed as costs This sleek reasoning flatly contradicts our $46,299 in guardian ad litem fees against the caselaw. In duPont v. S. Nat’l Bank government under F ED . R. C IV . P. 54(d)(1). 874, 882 (5th Cir. 1985), we held that “[a]s an

officer of the court, the expenses of a guardian The government appeals a discrete legal is- ad litem are properly taxable as costs pursuant sue. It does not challenge the finding of liabil- to F . R. . P. 54(d).” DuPont preceded ity, the damages, or the calculation of guardian Crawford Fitting , and the government argues fees, which we would review for that implicitly overruled du- abuse of discretion. Dickerson v. United Pont . In three recent cases, however, we cited States , 280 F.3d 470, 478 (5th Cir. 2002). Ra- duPont as good law and treated guardian fees as taxable costs as long as the 47.5.4. IR TH circumstances set forth in 5 lished and is not precedent except under the limited determined that this opinion should not be pub- R. . IR 47.5, the court has TH Pursuant to 5 [*] ad litem , not an attorney . [2] F.3d 491, 506 (5th Cir. 2000). , 210 Gibbs v. Gibbs 332-33 (5th Cir. 2002); , 279 F.3d 321, Lebron v. United States 478; , 280 F.3d at See guardian acted as a guardian [1] Mr. and Mrs. Gaddis, who also sued the

United States for loss of consortium with Courtlin, The United States concedes that, if guardian feared that an unexpected conflict of interest with fees are taxable costs, $46,299 is a Courtlin might occur during the litigation. (continued...)

The government relegates these cases to a at 332-33. Thus, we must adhere to our footnote and asks us to disregard them be- position that § 2412(a)(1) waives sovereign cause they do not cite . Yet, immunity against the taxed cost of guardian we must follow the decisions of our panels. fees.

Roark v. Humana, Inc. , 307 F.3d 298, 313

(5th Cir. 2002), petition for cert. filed (June AFFIRMED.

20, 2003) (No. 02-1845), and petition for cert.

filed (June 3, 2003) (No. 02-1826). We

therefore continue to treat guardian ad litem

fees as taxable costs against a losing party.

The government alternatively argues that it

has sovereign immunity from guardian ad li-

tem fees, even if they are taxable costs for pri-

vate parties. The United States has immunity

from judgments of costs and expenses absent

its unequivocal statutory consent. F

P. 54(d)(1); United States v. Worley , 281 U.S.

339, 344 (1930). The United States has con-

sented that “a judgment for costs, as enumer-

ated in section 1920 . . . may be awarded to

the prevailing party in any civil action brought

. . . against the United States.” 28 U.S.C.

§ 2412(a)(1). The government contends that

§ 2412(a)(1) does not waive immunity from

guardian fees, because the fees are

not “enumerated” in § 1920.

Again, however, this argument contradicts

our caselaw. We have explained that our cas-

es, both before and after Crawford Fitting

treat guardian fees as taxable costs

under Rule 54(d)(1) and, hence, under § 1920.

Furthermore, Dickerson and Lebron , also

FTCA actions, implicitly rejected the govern-

ment’s claim of sovereign immunity by ap-

proving in principle the decision to tax guard-

ian fees against the government and

remanding solely for calculation of the fees. , 280 F.3d at 478; Lebron

Notes

[2] (...continued) reasonable cost for the guardian’s work.