Gaddis v. United States

dismiss based motion to NHIC’s granting us to follow Nevertheless, urges NHIC immunity. Eleventh Amendment on in Shands decision Circuit’s the Eleventh Clinics, Beech Inc. v. & Teaching Hospital and REMANDED. REVERSED that Eleventh held Corp.38 Shands Street hospi a immunity precluded

Amendment private against two claims

tal’s state-law for Flori administrator

contractors —an managed- a plan and health employee

da’s preferred- maintained company Gaddis, care and Latanza GADDIS Carlton declar plan for network provider Individually Friend of as Next —for Although damages.39 Minor; Gaddis, relief and Courtlin atory Courtlin point Minor, Plaintiffs-Appellees, directly Gaddis, case “found no immu Amendment Eleventh has accorded granted corporation,” nity private ato America, UNITED STATES nonetheless, rely immunity the defendants Defendants, al., et sovereign extending federal ing on cases intermediari fiscal immunity to Medicare America, United States Further, emphasized es.40 Defendant-Appellant. and the hospital contract between No. 02-41655. agreed State, the hospital under which “express employees, state care for provide Appeals, Court United States failure for the penalty Fifth ly provides Circuit. thirty days is claims within

to reimburse 12, 2004. Aug. of the claims. the full amount payment of ren services for medical payment Such the state.”41 obligation

dered is an Shands, been have

Thus, in Florida would any judgment rendered. for

legally liable shown that has not

By contrast, NHIC liability for any legal

Texas would bear in this against NHIC

damages assessed

case. that Tex- not shown

Because has NHIC liability any legal subject to

as would be it, we any damages assessed judgment district court’s

reverse 39. Id. at 1312-13. stressed private prisons, Court trol over suing in their individuals that the bar protect discussed designed to at For the reasons capacities is 40. Id. official above, inapposite here. such party in cases state as the interest. real Cir.2000). 41. Id. 38.208 (argued), Ferguson,

Paul F. Jr. James Cox, Gregory F. Payne, Erick Provost TX, Beaumont, for Carlton Umphrey, Gad- dis, and Courtlin Gaddis. Latanza Gaddis George (argued), Bean Cham- Emerson Thomas, bers, Templeton, Cashiola & TX, Beaumont, for Courtlin Gaddis. background, which repro- U.S. the facts and we (argued), Cole George William Staff, duce below: Justice, Div.-Appellate Civ. Dept, of DC, Defendant-Appellant. Washington, Carlton and Latanza Gaddis were

stopped at a intersection when a street employee his postal drove Latanza, vehicle into theirs. who was initially suffered minor dis- pregnant, JOLLY, KING, Judge, and Before Chief comfort, pre- few weeks later she JONES, HIGGINBOTHAM, DAVIS, Courtlin, son, maturely delivered their WIENER, BARKSDALE, SMITH, serious defects. The Gaddis- with birth GARZA, DeMOSS, M. EMILIO es sued the United States under the STEWART, DENNIS, BENAVIDES, (“FTCA”), Tort Act Federal Claims PICKERING, CLEMENT, PRADO, and § 2671 et seq., negligence. for U.S.C. Judges. Circuit They requested, and the district court ad litem for appointed, guardian a DeMOSS, Judge: Circuit trial, Courtlin.1 After a bench the court banc to consider took this case en We found the United States liable for Court- guardian ad litem fees could be whether injuries and lin’s awarded Gaddises in government a Federal against taxed damages. million in The court over $4 (“FTCA”) case, light Tort Act Claims $46,299 guardian also taxed as costs Gibbons,Inc., v. Fitting Co. J.T. ad litem fees against the government 96 L.Ed.2d 54(d)(1). under Fed.R.Civ.P. (1987). follow, For the reasons that parents The Gaddis had moved for the that federal district courts we conclude Bean”) (“Mr. George appointment of Bean ad guardian choose to tax may continue to ad litem for Courtlin repre- guardian nonpre- litem against fees as court costs in the automobile acci- sent his interests gov- vailing parties, including against the government opposed litigation. dent The AF- case. thus ernment an FTCA We premature, arguing appointment such court to FIRM the decision of the district allegation no of a conflict that there was ad litem fees guardian against tax among the Gaddises nor of interest government here. In reply, interests. prejudice Courtlin’s urged that Federal parents the Gaddis BACKGROUND 17(c)2 authorizes Rule of Civil Procedure States, ad guardian of a Gaddis United appointment panel, The (5th Cir.2003) litem cases 190, 191 involving minors and & n. 1 Fed.Appx. appointed guardian should be gave a concise statement Courtlin (unpublished), Gaddis, incompe- of the infant or sued the defend on behalf 1. Mr. and Mrs. who also incompetent per- with person. States for loss of consortium or United tent An infant Courtlin, unexpected conflict of feared that an duly appointed have a son who does not might during with Courtlin occur interest by a or representative sue next friend litigation. guardian ad litem. The court shall guardian or appoint ad litem for an infant Persons, 17(c), Incompetent 2. Rule Infants repre- incompetent person not otherwise provides: an action or shall make such sented in incompetent person an infant or Whenever proper pro- it deems for the other order as general representative, as a has a such person. incompetent tection of the infant or committee, conservator, guardian, or other 17(c). Fed.R.Civ.P. fiduciary, representative sue or like government pursuant that no one take an as costs ad litem to ensure 54(d).3 to Federal Rule of Civil Procedure in relation to him. The advantage unfair government opposed the motion on par- with the Gaddis agreed district court grounds. relied government several guardian Mr. Bean as appointed ents and Fitting for claim that the represent “to the interests ad litem subject juris- district court lacked matter GADDIS, Plaintiff, minor COURTLIN diction to award Mr. Bean court fur- litigation.” The district [ the ] 54(d) expenses as costs under Rule charged for the ther ordered that “the all, tax specifically such costs Litem’& services be reasonable Ad government gov- because the necessary representation for of the Minor” 2412(a)4 ernment in 28 U.S.C. had charged taxed and that “the fees shall be immunity sovereign pay waived its subject approval by as court costs 1920,5 enumerated in costs as Court.” ad litem fees are not includ- After the bench trial with a concluded §in government ed 1920. The also con- liability, Mr. Bean finding if tended that even the court could award filed a motion for his ad litem fees as most requested charged fees and of Mr. Bean’s claimed were for Fees, 54(d), Costs; (West 2004). 2412(a)(1) Attorneys’ 3. Rule 28 U.S.C.A. part: government further contends because the (1)Costs ("FTCA”), Attorneys' Other than Fees. Ex- Federal Tort Claims Act 2671-2680, cept express provision 1346(b), when therefor §§ does not include a a made either in statute of the United States costs, 2412(a)(1) provision regarding rules, attorneys' or in these costs other than applicable provision governing costs to be fees shall be allowed as of course to the against government nonprevailing taxed prevailing party unless the court otherwise in an FTCAcase. directs; States, against but costs the United officers, agencies imposed and shall be costs, provides: 5.Section Taxation of permitted by to the extent law. Such judge any A or clerk of court of the United may by costs be taxed the clerk on one following: States tax as costs the day’s notice. On motion served within 5 (1) marshal; thereafter, Fees of the clerk and days the action of the clerk (2) by reporter Fees of the be reviewed the court. court for all or 54(d)(1). any part stenographic transcript Fed.R.Civ.P. case; necessarily obtained for use in the 2412(a)(1), fees, 4. Section under and Costs (3) printing Fees and disbursements for provides: witnesses; Except specifically provided as otherwise (4) exemplification copies Fees for statute, by judgment as enumer- papers necessarily obtained for use in the title, ated in section 1920 of this but not case; including the fees and of attor- (5) Docket fees under section 1923 of this neys, may prevailing be awarded to the title; party any brought by civil action or (6) Compensation appointed of court ex- against any agency the United States or or perts, compensation interpreters, any acting official of the United States salaries, fees, expenses, spe- and costs of capacity any his or her official court interpretation cial services under section having jurisdiction judg- of such action. A 1828 of this title. ment for costs when taxed the Unit- shall, and, ed States in an A bill of costs shall be filed in the amount established case statute, rule, order, allowance, upon court be limited to judgment included in the or reimbursing part prevail- in whole or or decree. ing party for the costs incurred such (West 2004). 28 U.S.C.A. 1920 party litigation. in the attorney at hearing, as an on behalf the court legal his work disallowed Courtlin, provided $1687.50, as appeared for services to be the na- guardian fees, Courtlin’s ad litem. attorney’s ture of and allowed a total $46,299.00 legitimate guardian ad hearing The district court then held litem fees. the final judgment, entry to the pertaining determine issues district court concluded that “the United concerning During judgment Courtlin. pay, court, shall States taxable cost of hearing, fully considered the the Guardian Ad Litem’s fee in the government’s arguments regarding the $46,299.00.” amount of guardian taxation of ad litem fees and that it to follow our determined was bound government timely appealed the Fitting precedents in Dick post-Crawford taxation of only, ad litem fees States, erson v. 280 F.3d United Court, panel and a of this in a per curiam (5th States, Cir.2002); Lebron v. United unpublished opinion, affirmed the award of (5th Cir.2002); agreed costs. We to hear the case en Gibbs, 506-08 Gibbs banc. Cir.2000), which cases all allowed for the prevailing party’s taxation of the DISCUSSION 54(d), ad litem fees as costs under Rule Here, seeks fur including fees attributable to legal ther review of the discrete issue of legal performed by services whether fees are taxable ad litem.6 These three cases were decided all, are at least not taxable Fitting, after and the district panel the United States. As the correctly out that the Dick pointed indicated, a pure question this is of law specifically erson and Lebrón cases both subject to de novo review. See Roe v. Tex. guardian the taxation of ad litem involved Servs., Dep’t Regulatory Protective & the against government fees the where (5th Cir.2002). 395, 400 prevailed in an claim. plaintiff had FTCA determining properly After that it could a district may guard- Whether tax guardian tax Mr. Bean’s ad litem fees against ian ad litem as costs the against government, the the district court nonprevailing government in an FTCA analyze Mr. proceeded expenses to Bean’s action. attempting distinguish in this to be- case— issue, Regarding government this the spent tween Mr. Bean’s time as Courtlin’s (taxable arguments appeal made the same as it against gov- ad litem cost) court, spent a his time did the district and as makes ernment as versus (cer- First, to en banc serving legal as a advisor to Courtlin here Court. government Supreme has tainly paid, charge- entitled to be but not claims the Court cost). Fitting government as a ruled the costs able Crawford analysis, by Federal Rule of Civil Proce- thorough place After a which took allowed States, (1987), 6. v. United 280 F.3d 470 385 where this Court held that the Dickerson States, (5th Cir.2002); appointed by expenses a ad litem Lebron v. United Gibbs, (5th Cir.2002); pur- properly taxable as costs F.3d 321 and Gibbs v. the court were 54(d). duPont, (5th Cir.2000), F.2d at 882. 210 F.3d 491 all relied on and suant to Rule Bank, is, That such costs were allowed where the affirmed duPont Southern National (5th Cir.1985), serving ad litem was in his role as 771 F.2d 874 case decided Gibbons, serving any Fitting of the Co. v. J.T. an officer court versus before Crawford 2494, Inc., attorney Id. 96 L.Ed.2d ad litem function. coming In Id. at 107 S.Ct. 2494. 54(d) party in a feder- prevailing to a dure itemized holding, Supreme limited to those Court consid- al proceeding 54(d), does not include § interplay among Rule ered relating 1821(b): any provision § submits Second, government fees. § that since argue Petitioners 54(d) and 28 U.S.C. Rule that under tax expenses “may” a court lists which it, may be 2412(a)(1), levied § only authorizes that section is, 1920; §in only as enumerated view, In their of certain items. taxation none of its has waived preclude § taxation of 1920 does not to costs not author- immunity as sovereign listed, beyond the items costs above ized statute. particularly, amounts ex- and more Fitting, Supreme Court In 1821(b) Thus, § fee. cess limits the that 28 U.S.C. explained 54(d) by Rule granted discretion witness fees awarda- litigants’ amount to tax as costs separate source of ble, tax such allows a court to expenses not enumerated those limits. 482 fees as costs within think, however, that no reasonable We 441-42, U.S. provisions together can reading of these contractual author- statutory absence conclusion, petitioners’ for lead to this feder- generous payments, for more ization If superfluous. renders view $30-per- are constrained al courts 54(d) grants courts discretion Rule (now ordering day $40-per-day) cap when appropri- tax whatever costs seem expert pay for the other’s one side ate, then which enumerates 444-45, 107 S.Ct. 2494. Id. at witnesses. taxed, no role costs that serves two cases of Fitting involved whatsoever. We think the better view is that covered prevailing parties awards the term “costs” as 1920 defines expenses reasonably all incurred 54(d). used in Rule Section 1920 enu- under the authori- experts, their bestowed merates federal court 54(d) ty as costs. The Court re- of Rule may tax as a cost under the discretion- awards, concluding jected the excessive 54(d). ary authority It is found Rule statutory explicit that “absent or contrac- 54(d) phrased permissively because Rule tual authorization for the taxation generally grants a federal court discre- costs, witness as litigant’s of a in favor of the tion to refuse to tax costs by the limitations federal courts are bound party. § § 1920.” One of the items enu- prevailing set out in 28 U.S.C. mileage gener- jurisdiction 7. of a district court of the United Section Per diem and subsistence, ally; part: in States. (b) paid A witness shall be an attendance law, (a)(1) provided by Except otherwise per day day’s $40 fee of for each attend- any at of the witness in attendance paid ance. A witness shall also be States, United or before United States necessarily attendance for time oc- fee Magistrate Judge, any person or before au- cupied going returning in to and from the deposition pursuant thorized to take his place beginning of attendance at the any rule or order of a court of the United any end of such attendance or at time dur- States, paid shall be the fees and allow- ing such attendance. provided by ances this section. (West 2004). 1821(a)-(b) § section, 28 U.S.C.A. The (2) As used in this the term "court (b) includes, at subsection in effect the time of in addition of the United States" Fitting provided per cap; $30 for a diem it courts listed in section 451 of this title, by $40 any by Congress was increased to amendment in 1990. court created Act of territory any Id. in a which is invested with note. (1991), fee, by in superceded statute as stated § is the witness set in merated Products, 1821(b) day. Landgraf v. Film 511 U.S. per § at USI by $30 244, 251, 128 L.Ed.2d 229 S.Ct. interpretation of accept an cannot We (1994): held that 1920 and “[W]e [§§ 1821] 54(d) any of render Rule would define the full extent of a federal court’s statutory provisions en- specific these litigation costs absent ex power shift Repeals by im- meaning. tirely without favored, authority press statutory go further.” petitioners plication are implication, Fitting in for explained: the ultimate The Court proffer “Crawford 54(d) §§ 1920 and 1821 are not an lightly Rule said that we would not find think that it is inconsistent. We § even 1821 or of implied repeal 1821, Congress §§ that in 1920 and clear limitation express which it held to be taxation addressed the comprehensively which, upon types of costs absent other litigants’ witnesses. This of fees for by authority, may be shifted federal compelling all the more conclusion is 87, 111 Casey, courts.” 499 U.S. at S.Ct. 1920(6) §. allows when we consider 1138. cost, taxation, compensa- as a Casey was whether precise issue court-appointed expert witnesses. tion experts fees for services rendered limit that sets a provision There is no rights litigation may be shifted to the civil court-appointed for compensation §to nonprevailing party pursuant way expert witnesses “a permits the award of reasonable 1821(b) litigants’ limit for wit- sets a. at attorney’s part fee as of the costs.” Id. clear that when nesses. It is therefore 97-102, 1138; 42 U.S.C.A. S.Ct. fees, a limit on it Congress meant to set 1988(b) (West 2004). ulti- Court think that the knew how to do so. We “ mately conveys § 1988 no authori- held: effect of sections inescapable these experts ty expert to shift fees. When that a federal court combination is trial, eligible course appear witness fees excess of at are of expert tax 1821(b) limit set out 1920 and $30-per-day provided the fee court-appoint- when the witness Casey, 1821.” by Rule granted The discretion ed. opinion Again, Casey, neither 1138. 54(d) specif- this is not a to evade below; nor of the briefs submitted Rather, it is congressional ic command. any specific propri- mention of the makes tax, decline to solely power fees as taxing guardian ad litem ety of §in the items enumerated 54(d) otherwise. to Rule pursuant Moreover, 441-42, Congress disagreed with note Id. at We opinions provided interpre- Fitting, shortly that neither after Court appeal- attorney’s courts which were in § of the two lower as to fees tation of 1988 case, the in that nor of briefs § ed to ex- in 1991 amended 1988 Casey and any specific mention of submitted makes to “in- courts the discretion plicitly provide ad litem propriety taxing guardian attorney’s of the expert part fees as clude 54(d) or pursuant to Rule (West 2004). fees as costs 1988(c) § 42 fee.” U.S.C.A. otherwise. § of the conceded that The Court itself Act, added subsec- Rights which 1991 Civil holding Supreme Court restated (c) 1988, obviously § drafted was tion Fitting Virginia in West from Crawford in result mind. Casey’s erroneous with Casey, Inc. v. University Hospitals, 251, 114 1138, Landgraf, 511 U.S. at S.Ct. 113 L.Ed.2d 68 U.S. 54(d), particularly government the Rule certainly followed has This Court 2412(a), § in Supreme expressly Court under which cross-ref- holding of specific in Casey, as restated as Fitting, erences Crawford cap litigants’ witness monetary to the However, easily reject govern- we in by Congress explicitly set fees first, argument: Federal ment’s because 1821(b), be circumvented cannot 17(c) Rule Civil Procedure constitutes authority the sole by federal courts under express statutory authorization alternative 54(d).8 fact, this Court in Coats of Rule required by Fitting provide as Crawford Corp., 5 F.3d 877 Drilling v. Penrod courts with the inherent and district 54(d) Cir.1993), “Rule of the also stated: guardian tax ad litem fees as discretion to Procedure provides Federal Rules Civil in- against nonprevailing party, costs prevailing for an award of costs ‘to the ease; cluding government an FTCA the court otherwise directs.’ party unless 17(c) second, if not because even Rule did costs, 1920 defines recoverable U.S.C. statutory express constitute the alternative and a district decline award authority required by Fitting, as Crawford the costs listed the statute but reasonably interpret meaning we omitted from the list.” Id. at award costs experts” in phrase appointed “court omitted). (footnote citation How- 1920(6) guardians ad litem encompass Coats, ever, Fitting Crawford such that district courts can tax their com- Casey, again guardian the taxation of pensation per including as costs 54(d) to Rule or other- pursuant litem fees case; government in an FTCA Rather, at issue. we were wise was not finally, light because even in of Craw- considering propriety costs Fitting, precedent this Court’s dic- ford obtaining transcripts deposi- for several taxing propriety tates the of district courts trial, necessarily tions obtained for use at including ad litem fees as “blow-ups,” expenses, travel costs video in an case. FTCA fees, fees, party party technician witness 17(c) grants Rule district courts the inher- fees, expert photocopies and costs of nec- authority ent to tax essarily obtained for use the case. as costs.

Coats, 5 891-92. Here, We start with Federal Rule of Civil acknowledge government’s we 17(c), Procedure which is the source of the argument as it is inferred from the lan- authority appoint district court’s Mr. guage Fitting quoted above. Crawford is, That because 1920 is silent to Bean as ad litem for the minor fees, guardian ad Gaddis in does include Courtlin this FTCA case. We Therefore, Supreme or define them as costs. such note that has never Court construed, interpreted, applied ad litem fees are not taxable as Rule against a nonprevailing party any opinion.9 under historical Drilling Corp., 8. See United States ex rel. Wallace v. Flintco Coats v. Penrod (5th Cir.1993) 5 F.3d Inc., (5th Cir.1998) (citing Fitting to af- (apply- firm the district court's not to award decision ing Fitting setting aside cross- fees). expert and witness expert awards of witness fees in excess of 1821); provided by § those for Pedraza Supreme briefly Court has mentioned Jones, 194, (5th Cir.1995) 71 F.3d 196 n. 3 guardians interpret- ad litem in the context of (noting expert how cases that allowed witness statute, ing solely by analogy, one federal specified by fees in excess of the amount Colony, Rowland v. Men's Unit II California by Fitting)-, § 1821 were overruled Council, 194, Advisory 506 Men’s U.S. 211-

453 omitted). Judges may “ignore, or tion indicates that rules published in the note 17(c) substantially Equity requirement former a fundamental overlook such “is Rule (Suits Incompe- by Against incompe- or infants protection [or Rule 70 for the tents) Fed. slight Adelman, additions.”10 with at 747 F.2d persons].” tent note. advisory committee’s (alteration R.Civ.P. (citing Roberts v. original) (5th Co., 35, Ins. 256 F.2d Ohio Cas. in this Circuit It is clear Cir.1958)). mi- protect to need 17(c) mandates that Rule authorizes incompetent person’s rights or nor’s a ad litem appoint guardian district courts proceedings in federal court is interests the interests of the in the situation where vital; extremely why this is is within “[i]t representatives, the Gad- general minor’s to determine the district court’s discretion here, may conflict with parents dis [guardian ad litem ] need for [the minor’s] minor child person, their interests of the may best fill that representation, and who here, otherwise be might who Courtlin Adelman, 747 F.2d at 989. This is need.” general representa by such represented proper proce- matter of why, also “as a Medley F. rel. v. Miss. Chrissy ex tives. dure, usually appoint a (5th the court should 25, 27 Welfare, 883 F.2d Pub. Dep’t of Roberts, (citing ad litem.” Id. Cir.1989); rel. Adelman v. Adelman ex 39). Cir.1984) (5th Graves, (“[T]he consistently recognized courts have ad power appoint guardians to This a appoint they have inherent 17(c) important is pursuant litem Rule it next when friend] ad litem [or rights only to ensure that the minor’s incompetent [or that the minor’s

appears in cases fully protected interests are has inter general representative person’s] represented the minor is otherwise where those of the may conflict with ests which interest, (sec may and there be conflicts represent.”) supposed is person he (cita- proper that the minor has also to ensure original) and third alteration ond (1993), Congress ex- question intended to a whether L.Ed.2d 656 that, nature, by their agency tend 1915 to entities whether an or considered case that require- party meet the statute's as a civil could never organization proceed could the Court held ments. pauperis, where forma entities, language 716. This persons, not artificial Id. at 205 n. only natural way appropriate circum- pauperis as civil liti- no addresses proceed in could forma guardians ad appoint recit- a gants per The Court stances for court to 28 U.S.C. 1915. guardians per such Rule how litem nor ed in a footnote: paid. are to be occasion, party is a minor or when a On ap- cooperate with incompetent, or fails Against by Incom- Equity Suits or Rule counsel, reason pointed or for some other is eighth appeared edition of in the petents, as affidavit, timely we will a unable to file Rules, Equity provided: the New Federal accept a an affidavit from ad litem to defend suit Guardians attorney. By accepting such an affi- or an court, by any judge by or appointed davit, requirement that the we bend the thereof, persons who or other for infants indigent and that affiant state "he” guardianship, in- or otherwise are under entitled to relief. “he” believes "he” is suing All infants capable of case, however, themselves. it is clear that such incapable may persons sue and other so "person” party within himself is a any, prochein guardians, or their their if only question meaning 1915. The however, ami; subject, orders as to such deny § Congress whether intended pro- judge direct for the some person who for benefits to such persons. other tection of infants and peculiar is disabled from to him reason ed.1933). Equity R. 70 quite a Fed. filing It is different an affidavit. 17(e) necessary consequence judicial system at all. “as federal access to the F., (noting equitable responsibility protect F.2d at court’s to Chrissy 17(c) guardian ad litigants this Rule who cannot making when the interests of minor determination, (citation “the dis- Id. omit- appointment protect themselves.” 17(c) that access to ted). consider trict court should acknowledge Rule Although we by aggrieved persons should the courts that district specifically does not state limited”). fair access to Such unduly be may guardian courts tax ad litem fees as by minors and incom- judicial system find the Panitch court’s we reason- if the district persons is enhanced petent court’s ing persuasive as to the district power ap- court exercises authority guardian tax ad li- inherent litem, also, as Rule point guardians man- express tem fees as costs under 17(c) directs, to “make such oth- expressly 17(c). date of Rule proper protec- for the as it deems er order Thus, a district court tax incompetent person.” or tion of the infant guardian per ad litem fees as costs Rule 17(c). This additional Fed.R.Civ.P. 17(c) 17(c) Rule to consti because we find necessarily required so the district express statutory au tute the alternative appointment compe- can effectuate tent, guardian required ad litem. thorization as Fit independent See, Communications, ting. e.g., Inc. ICG legitimate precisely It is due such Telecom, Allegiance v. 211 F.R.D. courts practical reasons that district must (N.D.Cal.2002) (noting each Rule Federal authority also have the inherent and dis- imprimatur of Civil Procedure has the ad litem fees as cretion to tax Congress such that Rule 26 constituted a parties. against nonprevailing See 222). purposes law for of 47 U.S.C. Wisconsin, 451 F.Supp. Panitch v. State of Likewise, powers respon the inherent (E.D.Wis.1978) (“Although Rule 17(c) sibility under Rule make such subject, we is silent on the believe proper orders as the court deems also for the reasonable value of award express statutory constitute the alternative provided by services authorization to tax ad litem fees against all of be taxed as costs requirements as costs to meet defendants, jointly severally.”). 2412(a)(1) any and defeat associated nonprevailing court ordered the Panitch claim plaintiffs sovereign immunity by minor the non- pay defendants to prevailing government costs under ad litem fees as Rule an FTCA case.11 States, expressly 11. The FTCA states that: "The Unit- under circumstances where the United liable, respecting provi- private person, ed States if a would be liable to the shall claims, claimant....”). relating sions of this title to tort in the same manner and to the same extent as a Supreme Court discussed the broad circumstances, private individual under like government’s nature and extent of the waiver prior but shall not be liable for interest sovereign immunity under the FTCA in judgment Co., punitive damages.” or United States YellowCab added); (emphasis There, (1951). U.S.C. 2674 see id. also 95 L.Ed. 523 1346(b)(1) (describing jurisdiction exclusive Court stated that "the [FTCA]waives the Gov- brought immunity sweeping district courts for civil actions ernment's from suit in language” "unquestionably." the United States as defendant “for Id. at added). Moreover, injury money damages prop- (emphasis ... for or loss of 71 S.Ct. 399 erty, personal injury or or death caused the Court noted that because the Federal negligent wrongful apply act or omission of Rules of Civil Procedure to "all civil actions,” employee acting language of the Government while the former of the FTCA scope employment, specifically application within the of his office or which referred to the

455 ex- appointed of court “[c]ompensation Court any Supreme of absence In the include reasonably read be to can perts” otherwise, there- we instruction holding or by guardian for services rendered fees banc as an en authority our exercise fore to pursuant a court appointed 17(c), ad litem the Rule under hold to Court 17(c). Rule and authority have inherent courts district to determine: discretion clearly have stated We Crawford needs with re judicial litem discretion Fitting ad “limits (a) guardian Whether may be inter- the kind of protect to to the gard appointed be however, not, costs; does incompetent as or recovered the minor ests the ap- interpreting so, be from prevent who will courts if and person, §in 1920.” phrases used capaci- meaning of the in that serve to best pointed Line, Corpus Ltd. v. Wind West ty; Africa Co., 1232, F.2d Servs. Marine Christi will ad litem (b) the guardian Whether (5th Cir.1988); v. Fu- also Cengr see services; for his compensated Inc., 445, 454 135 F.3d Sys., Piping sibond so, upon if the basis ], Cir.1998) (“Under (7th [Fitting deter- Crawford shall be of such services value mean interpret are allowed courts ad guardian mined, as long so 1920.”); §in Al used ing phrases of the ad guardian acting in his litem Labs., Inc., 914 Corp. v. Underwriters any attor- and not capacity flex litem Cir.1990) (9th (finding 175, 177 F.2d capacity; and litem ney ad 1920(1) “sup §of interpretation court’s payable (c) compensation Whether Fifth from decisions by recent ported will be ad litem held that have Circuits Seventh (1) to be a court cost as treated interpret con what are free to that courts nonprevailing taxable [Fit after stitutes taxable Crawford (2) to be expense as an or party Corp. v. Dresser Tool Hand ting]”); SK funds recovered out of payable (7th Inc., Cir. Indus., F.2d incom- the minor payable to by or 1988) Fifth Circuit (agreeing with the behalf on whose person petent authority inter- describing the court’s appointed. was phrases in meaning of the pret Fitting). despite 1920(6) courts district grants Section ad to tax authority statutory even Wind, we determined West nonprevail- against the as costs litem enumer- explicitly § 1920 does though FTCA case. in an ing government courts in its list depositions ate 1920(2) pro- interpreted 17(e) properly have Alternatively, were Rule reporter” of the viding for “fees to consti Court by the Supreme construed 1920(4) exemplifi- “fees for for providing statutory au express the alternative tute necessarily papers copies cation and Fitting to thority required as statutorily in the case” use for inherent obtained with courts provide district the costs taxation authorizing the to tax discretion power and copies. transcripts and deposition original concludes costs, this Court fees as Kole- 1238; States United (6) providing § 1920 subsection Cir.1990); (5th United 891 F.2d unnecessary. Id. was omitted Rules Acord, Thus, Cir. is no there States v. at 553 n. 1954). properly sub- FTCA actions question that States, v. United Simon ject See Rules. (5th sar, 835, Cir.1963) 313 F.2d 838-39 though there express is no au- provision a (holding deposition the cost of copy tax- thorizing payment of private process government able an FTCA § servers in Corp., 914 F.2d Alflex statutory case as a of matter construction at 178. 1920(2)); § under see also Cengr, 135 F.3d Similarly, though § even 1920 (finding at 454 deposition transcript ex- does not specifically guardian mention ad penses to be taxable costs as matter of litem fees in its list of guardian ad 1920(2) statutory § construction under as appointed by litem a court pursuant stenographic transcripts, photocopying and Rule can be reasonably interpreted 1920(4) expenses § authorized under as as court appointed expert under fees); exemplification Corp., 914 Alflex 1920(6).12 § litem is an ad (“The at 177 F.2d cost of copies deposition officer of the court with “full responsibility by is ‘encompassed’ 1920(2), section and is to assist the just, court secure a speedy, properly therefore taxed under the Craw- inexpensive of determination the ac ford, ].”); holding[ [Fitting] Maxwell v. True, (6th tion.” Noe 12 Hapag-Lloyd Aktiengesellschaft, Ham- Cir.1974) (internal quotations and citation Cir.1988) (in- burg, 862 F.2d 770 omitted). ad special litem’s § terpreting 1920 finding the costs of duty tois submit to the for its con photographic used at trial en- materials sideration and decision every question in 1920(4)’s compassed by § allowance for volving the statutory and constitutional for exemplification “[f]ees copies rights of the minor be affected papers necessarily obtained for use in the by F., the action. See Chrissy 883 F.2d at Hand, case”); (find- S.K 852 F.2d 944 (noting the appointment how guard ing deposition transcript expenses to be ians ad litem alleviate the risk of the by 1920(2)); § costs encompassed Federal minor party becoming pawn “a to be ma Procedure, Lawyer’s § Edition 26:54 nipulated on a larger chess board than his (2003) (“Even though 28 U.S.C.A. case”) (citation omitted). own Guardians does specifically mention depositions, ad litem perform thus independent func Supreme Court’s Fitting de- tions that integral are and essential to the cision preclude does not courts from find- judicial process. Cosentino, See Cok v. ing deposition transcripts are author- (1st Cir.1989) (finding guardians §by ized as the Supreme Court did ad litem are quasi-judicial entitled to im prevent courts from interpreting the same). munity because of meaning 1920.”) phrases used in (footnote omitted). Also, 1920(l)’s Therefore, guardians section appointed phrase “[flees of the clerk and the court reasonably marshal” serve experts as has been interpreted by the Ninth sense Circuit liaise with the court private include process servers’ fees and are charged as with the important duty taxable costs because the of providing service sum- insight their as to how the monses and subpoenas is judicial done process now almost is or is not comporting exclusively private parties employed for with the best interests of the minor or that purpose, not Marshal, the U.S. even incompetent person involved. While there court, 12. We note that at least one district declined to provision name under which decided, Fitting after was has found ad litem fees were included. the fees aof ad litem Co., Jones, Allstate Ins. Inc. v. F.Supp. taxable specifically under 1920 to- (M.D.Ala.1991). gether 54(d), with although Rule taxable 1920 costs history provides legislative in the indication is some government.15 nonprevailing against the as used expert appointed that court Fitting post-Crawford prec- ex- 1920(6) appointed to a court This Circuit’s refers guard- the taxation to Federal edent pursuant appointed pert as costs ian statutory 706,13 plain of Evidence Rule in an FTCA case. 1920(6) narrowly hot so does §of language appointed of court interpretation the limit ad Alternatively, guardian were thus not en banc Court This expert. Supreme by the litem fees not construed the narrowly interpret to so in constrained reasonably included to be Court expert. appointed court of this Court category taxable § list of 1920’s Fitting appoint- post-Crawford Therefore, find that we that our concludes ad litem pursuant propri the continued guardian dictates precedent16 ment of ad reason- the to tax clearly falls within courts ety of district Rule 1920(6)’s nonprevailing litem § authorization fees as of scope able in an government the appointed including “court parties, of the costs to tax courts the un recognize we defeats FTCA case. While finding This also experts.”14 Supreme Court the derlying treatment by gov- the immunity sovereign of claim 54(d) Rule between 2412(a)(1) interplay the gave to expressly because ernment holding (1991), the 95-1687, (1978), which restated L.Ed.2d 68 re Rep. at 12 See H.R. 13. the 4652, Fitting, to condone seems of 4664. 1978 U.S.C.C.A.N. printed in Crawford language of interpreting the practice of courts 1978 amendment to the Prior in 1920. categories listed the 1920, entirety of subsec added the which 87, (noting how no 1138 Id. at (6), specific subsection no there was tion “reasonably could be 1920 ap subsection interpreters or court either dealt with services rendered fees for read to include was 1978 amendment experts. The pointed a nontesti- Act, by party in expert employed Interpreters Court part of the passed as added). monial, advisory capacity”) (emphasis Evi Rule of language about Federal the so appointed a "court what governing 706 dence unques- is, legislative sweeping the again the located in We note expert” while 15. immunity by especial sovereign the afterthought, history, to be an tionable waiver seems Cab, FTCA. Yellow of the House the considering that the crux under ly 547, note We also need for S.Ct. 399. toward at 71 report the is directed text of budgeting quoted for court from the appointing and that the Court process of ultimately ap became statutory which interpreters, provision language other in all report also indicates shall be allowed "Costs pointed the FTCA: experts. to the same Court Inter impetus for the claimant original courts to the successful private in decision States were Circuit’s as United was the Sixth if the preters Act extent York, in- shall not that such costs Negron litigant, except New ex rel. United States 4, 1970), held at 547 n. Id. attorneys’ Cir. fees.” clude F.2d 390-91 was re- language requires Although that non- this Amendment S.Ct. 399. that the Sixth as reenacted provision be in was criminal defendants when that English-speaking moved made Court present inter in right to FTCA simultaneous of their formed meaning of the rely government's ”[w]e at the clear pretation proceedings 95-1687, (1978), read the original Act language at 3 in Rep. expense. H.R. Id. carrying it out.” language as 4653-54. revised U.S.C.C.A.N. reprinted in 1978 meaning Thus, plain why properly construe given for we historic basis no such There is 1920(6) as expert” appointed in experts of "court appointed should costs of court government's cost with allowed, refer an enumerated abrupt one-sentence immunity in mind. sovereign waiver of broad application. 706’s ence to Rule Lebron, 478; Dickerson, F.3d at University Hospitals, Virginia West Even 332; Gibbs, at 506-08. Casey, 499 U.S. Inc. v. Fitting, we are ad litem fees can be taxed Crawford apply any thus do not reluctant to and costs18; proscription such here the taxation of (d) “guardian Neither the term ad li- ad litem fees as costs phrase “guardian tem” nor the government in an FTCA case where anywhere appears fees” plaintiffs prevailed. We decline to read Supreme Court’s decision Craw- Fitting restricting us this nor in Fitting, any brief submit- ford following case for the reasons: ted to Supreme Court Craw- (a) No court in this Circuit ever has Fitting, nor in opinions ford read Fitting to disallow either of the two cases from the the taxation of Fifth Circuit considered the Su- against nonprevailing parties, preme Court Fitting; including in FTCA Crawford eases; (e) We have Supreme found no Court n (b) In addition to precedents in this opinion that any way addresses in Circuit, each other circuit that has propriety charging guardian of spoken on guardian whether ad li- ad litem paid fees as costs to be tem fees can taxed as court nonprevailing party in any pro- either before or after Fit- Crawford court; ceeding in federal ting including Fourth, Eighth, — (f) Finally, Tenth, practice of assessing and D.C. Circuits—has

agreed can17; guardian ad litem fees as costs (c) against a courts, nonprevailing party is Several district including clearly

those in the recognized by Seventh and ap- Eleventh state courts Circuits, agreed have also plying respective their state statutes States, 1125, 17. Hull v. United against 53 F.3d 1128- nonprevailing government costs (10th Cir.1995) 29 (upholding taxation of pursuant 54(d)) (post- FTCAaction to Rule guardian ad against litem fees as costs non- Jones, Fitting)-, F.Supp. 763 at 1102 Crawford prevailing government in an FTCAcase under (allowing prevailing party to recover fees and 54(d)) (post-Crawford Rule Fitting)', Kolls expenses guardian of ad litem as taxable costs Cohen, 702, man v. 996 F.2d 706 Cir. pursuant 54(d)) (post- 1920 and Rule 1993) (remanding for the district court to 1,197.29 Fitting)-, United States v. Crawford determine which costs were attributable to Land, Less, Acres More or Situate in Butler of guardian role of ad attorney litem versus ad Kan., County, 728, State F.Supp. 759 735 of charge against litem and nonprevail- them (D.Kan.1991) ("The appointed guardian ing party pursuant authority to court’s under ad litem is entitled to a reasonable fee for his 54(d)) (post-Crawford Rule Fitting); Schneid action, services in this to be set 835, er v. Corp., Lockheed 658 F.2d Aircraft costs.”) and taxed (post-Crawford as Fitting)-, (D.C.Cir.1981) 854 (holding the district court United City States v. Certain Virginia Lots in of properly guardian allowed ad litem fees to be Beach, (18) Eighteen Va. Known as Lots and costs) (pre-Crawford taxed Fitting), abro (19), (3), Nineteen in Block Three F.Supp. 657 Keto, gated grounds, Duggan other (E.D.Va.1987) (taxing guardian ad (D.C.1989); A.2d 1139-40 v. Bu Franz against litem fees as nonprevailing court costs der, (8th Cir.1930) 38 F.2d (allowing States) (pre-Crawford United Fitting); Pan guardian taxation of ad litem fees as costs Wisconsin, itch v. F.Supp. State of pursuant 70) Equity (pre- Federal Rule (E.D.Wis.1978) (taxing guardian ad litem Fitting). Crawford fees as costs nonprevailing parties all States, Calva-Cerqueira pursuant 17(c), v. United though to Rule the Rule is F.Supp.2d (D.D.C.2003) (allowing subject”) "silent on the (pre-Crawford Fit taxation expenses ). of ad litem ting minor’s ad litem and as both appointment governing rules and litem, only person’s attorney ad ad litem.19 his guardians payment are taxable as in the former role conclude we reasons For these 54(d).” Id. under Fed.R.Civ.P. costs subject of have did not Court Supreme 506). Gibbs, (quoting init render- fees before ; Fitting opinion in ing its Here, court underwent the district deep precedents the wide because expense-by-expense determina thorough courts, we federal and other in this Circuit Mr. Bean’s fees were in tion as to which of the language to extend obligated are not The court legal services. the nature practice to overrule Fitting Bean’s case law certain of Mr. found that fair and accepted as widely has been drafting statutory research and language express in the absence proper properly for fees his were motion requiring Supreme Court from the them as costs. chargeable and disallowed change. court did not conclude the district We courts Overall, hold that district we thus determine the broad discretion to abuse its to award the discretion retain amount of costs to be awarded appropriate them and assess fees as court Mr. Bean. including the nonprevailing parties, FTCA case.20 government CONCLUSION here appropri- court district Whether of carefully the record Having reviewed ad guardian award ately assessed the of parties’ respective brief- this and case litem fees. for the reasons set ing arguments, and dis have broad District courts above, the decision of we forth AFFIRM appropriateness determining the in cretion ap- court to award the district Dickerson, F.3d 280 of an award costs. of as ad litem his fees guardian pointed 500). Gibbs, We (citing at 478 nonpre- chargeable against court cost or award denial a district court’s review in case. this FTCA vailing government fees, for litem costs, including guardian ad guardian AFFIRM the amount alsoWe Dickerson, 280 an abuse discretion. awarded. ad fees omitted). (citations “[W]here at 478 F.3d AFFIRMED. as capacities acts in the person the same 2003); Virginia ad 17(d) (West application of the See, court’s e.g., Civ. P. Ala. R. 19. 17(c) 2004); (West applying Rules Comp. litem statutes and Ann. 755 Ill. Stat. 5/27-4 (West Comp. 54(d) Ann. 600.2045 had erred court Mich. Laws instead where district (2004) (b)(2) 2004); duPont, § 1A-1 N.C. Gen.Stat. diversity jurisdiction); 771 finding in 17); Civ. P. Civ. P. (codifying N.C. Tex.R. R. (noting applicable Texas n. 6 F.2d at 882 2003); Wright, (Vernon 6A Charles Alan 173 guardian ad litem regarding taxation of law Kane, Mary Kay Federal & R. Miller Arthur case); diversity in apply could fees as 1570, (2d at 506 Practice and Procedure Inc., Co., 661 Serv. v. Schneider Mulholland states ed.1990)(noting the law of several how 708, 1981) (applying Mis 712 Cir. guardian ad litem provides for taxation defendant regarding costs of statute souri costs). fees case). diversity But see in guardian ad litem F.Supp. 916 Corp., v. APCO Miron sitting that district courts Court notes 20. This 54(d) (E.D.Wis.1968) discre (applying Rule applicable state diversity can look to fees in a guardian ad litem award tion to not pay- appointment and governing the statutes Wisconsin statute diversity instead of case litem, instead of Rules guardians ad ment of award). See, required such have that would 17(c) 54(d), e.g., Kolls- man, (correcting district 705 n. 996 F.2d at KING, Judge, dissenting: specifically Chief does not state” that may litem fees be taxed as I dissent. For the reasons respectfully provides it nevertheless “express cogently explained Parts II.A-B and III statutory authorization” for that result. dissenting opinion, I Judge Smith’s Maj. Compare Op. at 454 with id. at hold that ad litem fees would 454.2 cogent insight, Emboldened as costs of under cannot be taxed then embarks on a broad 54(d) authority of Rule because fictions, survey legal highlighted by an not enumerated 1920. See impliedly explicit waiver of sovereign im- Gibbons, Inc., Fitting Co. v. J.T. munity and the discovery that a statute 437, 441-42, U.S. has despite force binding repeal (1987). L.Ed.2d 385 As whether Rule separate authority, source of it power appoint well be that the could if sitting Congress, As ad litem carries with an inher- ultimately agree on nothing able more payment: ent to order out than a result: Guardian ad litem award, court, out of some res before taxed as costs parents, possibly from the from another despite sovereign immunity despite court; private party before the the bounds Gibbons, Fitting Inc., v.Co. J.T. authority of the district court’s in such 96 L.Ed.2d practical matters are mark. difficult to (1987). The doctrinal basis for that But, whatever be true regards however, result illusory, is so that the ma- liability private of a litigant, Rule 17 does jority compelled feels to insulate itself (and not) arguably could provide layer upon layer of holdings. “alternative” explicit clear and waiver of sovereign im- result, As a today’s true basis for munity permit that would an order direct- decision remains a mystery to the —even government, ed the which is the issue in majority wrought it. that See, today’s case. e.g., States v. United unescapable reality that is the fed- Inc., Village, 30, 33-34, Nordic eral rules and statutes fail to provide that (1992); 117 L.Ed.2d 181 cf. ad litem fees be taxed as and 2412(a)(1). only the authority other for that proposi- tion, Bank, v. S. duPont Nat’l F.2d SMITH, JERRY E. Judge, CIRCUIT (5th Cir.1985), fails to survive joined by JOLLY, E. GRADY EMILIO M. Fitting. Because majority the is unable to GARZA, PRADO, BENAVIDES and accept the policy implications of re- that Judges, Circuit dissenting: sult, boldly it infers the existence of a In an act of doublethink,1 Orwellian the power Congress that yet has not fit seen majority although concludes that “Rule to provide, brazenly then declares that it is power “Doublethink means holding the of 2. This is not the first time majority an en banc contradictory two beliefs one's mind simul- of this perplexing court has reached such a taneously, accepting and both of them.... Kelly result. See v. Lee’s Old Fashioned Ham conscious, process Inc., has to be or burgers, it would Cir. 1990) (en not be precision, banc) (Smith, J., carried out with ("[T]he sufficient dissenting) unconscious, also has to be presence it or it would 'express' the of word should be bring feeling it falsity word, with a enough of hence of of a clue that that rather than Orwell, guilt.” G. Eighty-Four Nineteen 'implied,' the word is what in fact was meant (1949). 54(b) promulgation ]."). in the of [Rule appoint- for the provides that language the provided “specifically” “expressly” litem; second, entirely si- ment of a statutes in rules and can opinion an court to subject. Such that allows the language the lent on the is majority that of a product the protection of orders for the issue other in its than in its result more confident I address Fed.R.Civ.P. 17(c). minor. Cf. dissent. respectfully Iso reasoning, claims turn. those I. holding, convincing and least

In its first argument accepts the majority of meaning surprising that It is not overrules du- Fitting implicitly little since changed has “express” the term it Pont, agrees that majority so the Kelly and this court decided when or stat- a rule necessary to find therefore impliedly- concept an begat of first taxation authorizes that expressly ute now,. Then, express statement. Faced with as costs.3 litem fees of ad “directly and dis “express” meant term pow- majority holds challenge, the than expressed rather tinctly stated enu- expressly should be to tax costs er to inference.” Webster’s or left implied ac- 17(c), in rule so merated (Merriam- Dictionaey Int’l Third New the text notwithstanding cordingly finds— 1986).5 is, mildly, it “the put It Webster enumerat- expressly it is rule —that ” Kelly, 908 ‘implied.’ very opposite ed.4 J., (Smith, dissenting). at 1222 demonstrate, majority’s I will As It is ex- no severely flawed. reasoning is makes no mention rule Because (1) that the observe aggeration to payment costs or the taxation of either the of some of meaning plain ignores fees, no sense there lan- English elementary words in most guardian’s “expressly” (2) repealed long-since relies on guage; If the as costs. may be taxed (3) immunity; gives federal waiver somewhere costs exists fees as to tax such mandate; broad impermissibly an rules 17(c), only be as it can rule within to re- (4) refuses inexplicably then court’s district implicit component newly-drafted application mand for As a guardian. authority appoint rules. 17(c) rule result, majority’s claim that A. statutory authorization” “express contains costs is fees as ad litem taxation of for the “express authori- majority finds its 17(c): first, false.6 patently of rule parts zation” two Dictionary also See Fitting, U.S. at Black's Law 3. See Crawford ed.1999) Clearly and unmis- adj. {“express, statutory ... "explicit (requiring S.Ct. 2494 stated.”); communicated; directly takably of costs for the taxation authorization” Collegiate Dictionary 1920(6)). U.S.C. in 28 enumerated Merriam-Webster’s 1998) ("la: directly, firm- (Merriam-Webster -stated, (stating is "[i]t that Maj. Op. at 454 b: Precise.”) explicitly 4. See ly, and Exact, practical legitimate and to such precisely due Fitting, also must have district courts reasons that authority. "explicit” speaks in terms tax authority discretion to inherent by full clear "Explicit” means against non- .“characterized as ad vagueness or ambi- being without expression: relying on decision parties,” and prevailing nothing implied.” Webster's leaving guity: 17(c) "silent rule that describes (Merriam- Dictionary subject”). New Int’l Third majority’s argument in the holdings. This flaw “alternative” In arguing that glaring more Fitting here, becomes all the when rule inapposite is 17(c) compared gov- majority is with rule which claims that the federal rules are appointment compensation erns the provide similar to state laws that for the masters. See Fed.R.CivP. 53. The rules compensation guardians ad litem. See explicit committee knows how to be when Maj. Op. at 459 & n.19. The critical differ- be, it wishes to ence, rule makes abundant- however, between federal law and ly plain. the state by majority, laws relied on specifically the latter all and unambig- 53(a)(3) newly provides revised rule uously provide ad litem fees master, appointing “[i]n may be taxed as costs. imposing must consider the fairness of likely expenses parties.” on the Fed. example, majority For cites Alabama 53(a)(3) (West 2004).7 53(h), R.Crv.P. Rule 17(d). Rule of Civil Procedure Much like title, expressly its own addresses the 17(c) federal rule pro- Alabama’s rule “compensation” of masters. Subsection vides that a district court “shall appoint a (h)(1) provides “[t]he court must fix (1) guardian ad litem for a minor defen- compensation the master’s before or after dant, (2) or for an incompetent person not judgment on the basis and terms stated represented otherwise in an action.” Ala. appointment.” the order of Fed. R. P. Civ. 17(c). R. rule, Civ. P. Unlike the federal 53(h)(1). (h)(2) speci- Subsection further however, Alabama’s rule also includes sub- compensation fies that the master’s (d), part provides: which both, paid by be party either or from a In all cases in a guardian subject fund or matter the action within required, the court must ascertain a the court’s control. Fed. R. Crv. P. compensation reasonable fee or to be 53(h)(2). allowed paid to such ad Thus, say it is fair to that rule 53’s litem for services rendered in such express provisions dealing with both the cause, to part be taxed as a of the costs appointment and the compensation spe- action, in such and which is paid to be cial masters constitute “explicit” authoriza- when collected as other costs the ac- tion of the kind contemplated in Crawford tion, to such ad litem. 17(c), Fitting. contrast, Rule provides 17(d) (cited Ala. R. Crv. P. Maj. Op. appointment for the guardians n.19). at 459 says litem. It nothing whatsoever about the means appointed guardian which an Mississippi’s rules are similar. As with and, is to compensated accordingly, rules, the federal and Alabama Mississippi does not contain “explicit statutory has a rule for the ap- authorization” needs to reach pointment guardian of a ad litem for un- its result. represented 17(c). minors. Miss. R. Crv.P. Ironically, point this is Alabama, further illustrat- Just as in but unlike the federal by ed the majority’s advocacy rule, of one of appointment its the provision is immedi- 1986). power Webster by The provided identified the compensation "[t]he to be al- district court no more fits this definition than court, lowed to a master shall be fixed the "express.” it does that of the word charged upon and shall parties be such of the ... may as the court direct.” Fed.R.Civ.P. revision, 53(a) 7. Before its rule was —which 53(a) (West 2003). "Appointment titled Compensation”— and by seizing on rule this majority does by a section addresses ately followed 17(c)’s district courts the provision guardians: compensation the order as it deems such other shall “make a in which In all cases of the infant or protection for the proper a must ascertain the court required, is According Id. to person.” incompetent to be compensation or fee reasonable power is additional majority, “[t]his the guardian ad to such paid allowed so district court necessarily required the in such rendered his service litem for compe- of a appointment can effectuate a of the cost cause, part as to be taxed tent, ad litem.” Id. independent action. such 17(d).8 P. R. Civ. Miss. on a selec- premised is argument That 17(c). 17(c) full sen- of rule quotation tive rules state similarly worded If the provides: the that re- tence relied for provided already “expressly” wholly ex- sult, would provisions these a ad appoint shall The court they are not. The fact is traneous. incompetent per- an infant or litem for thinks much the matter how No in an ac- represented son not otherwise the should be courts practice the federal order as it make such other tion or shall 17(c) states, rule as in same these protection proper for deems ad guardians appointment for the incompetent person. or infant fed- litem, no commensurate there added). 17(c) (emphasis Con- Fed.R.Civ.P. the manner specifying eral rule statute understanding, majority’s trary to If that paid. are to be their in which is that rule meaning passage of this plain craft a policy, power is bad omission courts a choice the district affords in the hands of Con- solely lies solution litem and issu- ad appointing between rules, the federal and the drafters gress of the for the ing protection orders other our [of] abusive “exercise simply pow- court the minor; give it does Maj. banc Court.” authority as an en Cf. do er to both. 455. Op. at in fur- given being power a

Far from an ad power appoint of the therance litem, grant is a order” clause courts, the “other the district created for Having court district that enables the cloth, authority” of discretion “inherent out of whole a appointing the minor without protect step next tax ad litem fees 17(c) is not reading of rule That guardian. find is to majority’s linguistic putsch in the text, but the face only plain on text of into way place a those of by our decisions9 confirmed Maj. at 454. Op. rules. the federal Cf. main to its majority's 17(b) second "alternative” (providing that N.C. Civ.P. 8. See also R. holding. person "may appoint discreet some tax ... guardian ad litem and fix to act as See, Cas. Ins. Co. e.g., v. Ohio Roberts costs”); part fee as P. his Tenn. R. Civ. Cir.1958) (providing that (“The discretion allow in its 17.03 court usually appoint an ad court should district litem, fee litem reasonable ad weighing all the "after instead costs.”); services, Civ P. to be taxed Tex.R. circumstances, pro as will such order issue ("the guardian appoint shall appointment of a minor in lieu tect a him person and shall allow may for such even decide ... and guardian ad litem unnecessary”); as a services to be taxed appointment fee his reasonable for such Graves, costs.”). 747 F.2d examples can be ex rel. Adelman Further Adelman part of the 1984) (same). (5th dissent, Cir. addressing 988-89 part this in found III 464 A leading Rather,

other circuits.10 treatise on fed- attorneys’ may costs and fees succinctly procedure explains only eral be taxed against may appoint court either a guardian immunity “the the extent that by is waived Equal (“EAJA”), ad litem or ‘make such other order as it Access to Justice Act protection Rowe, § proper deems of the U.S.C. 2412. See Sanchez v. ” Cir.1989). infant incompetent person.’ or F.2d JAMES The EAJA AL„ provides, W. MOOREET part: relevant FEDERAL MOORE’S PRAC- (Matthew ed.) § Bender 3d 17.21[3][b] TICE Except specifically as otherwise provid- added). (emphasis Because it is only used statute, costs, ed a judgment for as an appointment alternative of a title, enumerated section 1920 of this litem, guardian ad the “other order” including but not the fees and majority clause no cover. attorneys, may be awarded to the prevailing party civil action then, short, In majority purports to brought by against the United States. rely “express statutory authority” for 2412(a)(1). language That unambigu- Instead, the taxation of ad litem fees. it ously provides may that costs be taxed only implied relies on an power that it against the only United States if provision creates and then reads into a among those enumerated 28 U.S.C. only the rules that can be invoked when an 1920. Although 1920 lists a number appointed. ad litem is not costs, of items of says taxable it nothing about ad litem fees.11 aAs re- B. sult, even if is correct holding that ad litem may fees be taxed as majority’s first equally rationale is 17(c), costs under rule sovereign immunity unconvincing in its gov- discussion of the has not been may waived and the costs claim ernment’s to sovereign immunity. be Thus, taxed government. assuming, Even arguendo, that ad litem the district court’s taxing order may be taxed as costs under some fees must be reversed. 17(c) 54(d)(1), combination of rules holds, the majority those costs can not To avoid this straightforward result— automatically be taxed against govern- is, evidently, so unpalatable to the ment as the losing party in an action majority that it gowill to extraordinary brought under the Federal Tort lengths Claims to avoid it—the takes two (“FTCA”), Act seq. et approaches. body opinion, it This is because the FTCA—as it is cur- sovereign immunity assesses using the cor- rently drafted —does not govern- statute, waive the rect holds “the inherent ment’s immunity from the taxation of powers 17(c) responsibility under rule attorney’s fees. to make such orders as the court deems See, e.g., Parson, Gardner Gardner v. recognize I majority's that one of the "al- (3d Cir.1989) (stating holdings “un- ternative” is that 1920 enumerates 17(c), may der Rule appoint guard- ad litem fees as a taxable cost. I ian, may or it decline to do so if the child’s part refute that present claim in II. For protected however, interests purposes, an alternative my discussion is focused manner.”); Genesco, Corp., rationale, Inc. v. Cone Mills majority's on the first in which (4th Cir.1979) (Rule 17(c) posits specifically provides that rule requires the appoint guard- court either to both that ad litem fees be taxed as ian "or take equivalent protective other they may ac- gov- be taxed tion”). 2412(a)(1). ernment under replaced in since been ex- FTCA 1948 has alternative the constitute also proper by other statutes. guard- to tax statutory authorization press to meet the as costs ian 1. 2412(a)(1) § and defeat of requirements with, premise of the begin the entire To immuni- sovereign of claim any associated immuni- sovereign majority’s discussion of in an government nonprevailing ty by the flawed, it is directed ty utterly because 458. Maj. Op. at case.” FTCA fit a non- that ad litem fees proving at take a contrast, majority’s footnotes the This is exception to the EAJA. a existent argue approach different completely however, I will not belabor point, so minor terms of by the immunity is waived it. rather, by the terms FTCA itself—or the 17(c), find, in rule The court claims to than a half more FTCA as stood of exception specific statutory n. 454 n. 11 & 457 id. century ago. See at 2412(a)(l)’s immunity. § waiver of limited in U.S.C. language (relying on that its ex- if the court show Even could 1948). 931(a) in repealed that was § in and located ception specific is both flaws in the do, are several serious ex- something There it cannot as statute — First, through majority’s analysis. in plained sub-parts infra —it reached phrase support not the conclusion opening would mistakenly reads majority. 2412(a)(1) by the can be that there providing to the defini- statutory exceptions specific flatly misreads Prop- the EAJA. as used in of costs tion 2412(a)(l)’s “Except clause: opening understood, provides some- that line erly provided statute.” specifically otherwise that there are markedly different: thing understood, do those words not Properly not does in in which cases there are instances mean that immunity the taxation the United may against from costs be awarded waive specified Second, mangles though they further are not even court States costs. contrary, the rule To the statute’s finding that language by English being those of costs as items im- definition waiver of an “express” contains are enumerated it does munity, despite recognizing fees, attorney’s is absolute. including anything to “specifically state” 455; Maj. with id. Op. at Compare effect. Instead, “Except as other- phrase Third, federal gives court only provided statute” specifically wise mandate, broad impermissibly judgment rules that “a statement modifies the limita- fourth, then, ignores words pre- to the ... be awarded for costs exceptions brought by for provide civil action tion vailing party 2412(a)(1) by “statute.” It only as specified the United States.” only be seen as in which costs Finally, in what can instances that there 2412(a)(1) the United analysis §of that its are not recoverable concession among States, they are those muster, majority simply though even pass fails attor- and are not preference aside enumerated that statute brushes refers exception neys fees.12 removed from language that was for generally allow ing or rules of statutes Fees Ingen, Van Allowance 12. See also G. party to prevailing in favor Appointed ad Litem Guardian for Infant However, sometimes Costs, litigation. the statutes 30 A.L.R.2d Defendant, as denying costs 2004) ("[T]he recognize propriety govern- (Whitney § 1 WL 8032 subject predicate says generally may of the sentence: make orders; judgment says that a other it nothing specific the combined statement may about what for costs be awarded those orders be. It there- 2412(a)(l)’s fore no exception It does not create an ex- to United States. general rule that ception of costs as not be taxed to the definition items §in unless that are “enumerated 1920 of this §in title, enumerated 1920. including but not the fees and ex- attorneys.” penses of merely a question This is of the So, majority’s majority’s ignoring plain claim that it has iden- meaning of specific, statutorily grounded tified a ex- “specific” interpretation the word 2412(a)(1) 2412(a)(1). ception is immaterial: Even absent the EAJA’s ex- only can exception prevent press requirement exceptions such serve to its costs; the taxation of it can not “specific,” serve terms be the same result permit things the taxation of that are not dictated principle “the traditional costs. the Government’s consent to be sued must strictly in

be construed favor of the sover- eign, and not ... enlarge[d] beyond what language requires.” United States v. The court’s second identifying mistake — Inc., 2412(a)(1) 30, 34, Village, Nordic putative exception U.S. (1992) (inter- worse, calling “specific” it far L.Ed.2d 181 and it is —is omitted). quotations nal one that should now “Waivers seem familiar. sovereign immunity, Government’s assuming, arguendo, Even to be the EAJA effective, unequivocally must be exceptions allows for to the ex- definition of omitted).14 pressed.” 2412(a)(1), (quotations Id. the word costs as used in rule 17(c) “specific” does not constitute a excep- No matter how much the tries tion government’s to the limited waiver of 17(c), to contort meaning of rule there immunity. is no sense in which it “specifically,” either

The term “specifically” “explicitly,” “expressly,” “clearly,” means “with ex- or “un- equivocally” actness and precision: sovereign a definite man- waives immunity ner.” Webster’s Thied from the taxation of ad litem fees as court Int’l New Dictio- (Merriam-Webster 1986). costs. The opposite takes the naRY Again, says ordinary because rule our nothing approach and finds a waiver fees, all about immunity provision it does of the federal not “specifically provide” rules that completely for waiver of silent the sub- government’s immunity ject. from their tax- ation. This impliedly-express waiver of sover-

Even if the “other order” clause in eign immunity rule flunks even the most le- 17(c) is portion held out as the of the rule nient understanding of the clear statement that provides for a immunity,13 waiver of presence rule. Its opinion an en banc fails specifically. to do so That clause purpose can serve no but to throw our prevailing party, Williams, favor of the proper under the 14. See also United States ”) 527, 531, circumstances. 131 L.Ed.2d 608 (1995) ("[W]e may enlarge the waiver claim, unsupportable beyond An purview for the statutory reasons I lan- I.A.2, part supra. discuss in guage.”) can no more valid- The Rules Committee immunity jurisprudence sovereign entire im- sovereign ly United States’ waive the into chaos. It lacks the munity this court can. than authority speak to on behalf of the United 3. sovereign party as a capacity States 17(c) analysis If said what the majority’s in the a lawsuit. rule flaw to The next exist in says, its contention it it would immunity is thinks sovereign of 17(c) Maj. authority Op. grant limited of a statute. See violation of the that rule of majority recognizes, which it was enacted. The under at 454. of im- course, specific even a waiver that issue addressed this Supreme The Court to the exception as an

munity is ineffective Sherwood, 312 U.S. States v. United by statute.” “provided it is unless EAJA (1941), L.Ed. 1058 61 S.Ct. 2412(a)(1). majority— 28 U.S.C. held: author- court as only single district citing prac- in the new rules of civil [NJothing descrip- fits this that rule ity—finds of ... the maintenance tice authorizes tion.15 States to any suit United course, are, of it has not otherwise consented. part rules The federal upon a to authority them the An conferred law, give often and we federal for the exercise procedure En- make The Rules rules effect as statutes.16 same authority to jurisdiction is not an abrogation an clause of its Act has abling even Act of jurisdiction and the enlarge with laws that provides conflict “[a]ll authorizing ... this Court force or of no further June shall be rules [the] in civil procedure rules of prescribe effect.” to rules have taken after such effect modify, 2072(b). authority no to So, actions it gave to extent enlarge the substantive abridge rules have or that the federal majority argues enlarge or dimin- litigants or Congress” rights such imprimatur “the laws, jurisdiction of federal courts. fully agree. I ish the they considered Maj. at 454. Op. See 589-90, 767. at Id. truism, responds with

Nevertheless, differ- one of the critical rules apply that the federal observing and stat- the federal rules ences between n.ll. Maj. Op. at 454 See to FTCA actions. are restricted that the former utes is gov- I nor the they En- course do—neither limited The Rules Of topics. certain Indeed, if contends otherwise. ernment authority to the Su- delegates Act abling apply to FTCA did not the federal rules general only “prescribe Court preme actions, greater would be problems our procedure.” practice rules would have still, district court 2072(a). Moreover, because the specifically it U.S.C. appoint authority even lacked rules shall not “[s]ueh 17(c), alone to rule let under any modify or substantive enlarge abridge, way, 2072(b). compensation. Either for his provide right.” U.S.C. Wilson, See, e.g., States United Op. (citing Communi- Maj. at 454 ICG 15. See Telecom, cations, Cir.2002) (finding F.R.D. "Con- Allegiance Inc. v. (N.D.Cal.2002)). The Commu- ICG integral, passive, role albeit gress retains stand for does not even case nications any rules drafted implementing majority: proposition attributed to Court,” rules have the federal can with, synonymous “statute” is that the term statutes). operative effect as the same includes, the federal rules. least at 54(d)(1) entirely point, interpretation Even rule beside that contention —an rules not fail to applicable ostensibly heart of the because which is im- they government’s say that waive majority’s opinion distinguishes between — capacity do so munity, lack “Except express pro- terms: when the two event. in a statute vision therefor is made either ” of the United States or these rules.... 54(d)(1). R. That Civ. P. choice of Fed. almost identical to the first line of words is problem another with the There is still 2412(a)(1), § but for one omission: The majority’s use of a federal rule to effect exceptions only other- permits EAJA “as immunity. conceding Again, waiver of specifically provided by wise statute.” 28 cases, apply that the rules to FTCA 2412(a)(1).18 § assuming for the moment that the rules U.S.C. waiving government’s capable wished, Congress If had it could have immunity, problem there remains the provided exceptions may that to the EAJA majority’s

whether the rules fit the identi- “specifically provided by be statute or 2412(a)(1). major- § exception fied rule,” just provid- as the Rules Committee ity Congress fact that ignores the chose not, drafting ed when rule 54. It did “statute,” only to use word however, and as a result this cannot “rule,” may that provided when there 17(c) hold out rule as the source for an exceptions to the EAJA. Federal law is exception to the EAJA. rife with instances which the two terms are held out independent legal as con- 17(c) reasons, For those rule does not cepts.17 They independent meanings, have government’s immunity waive the from the Congress’s and as a result I cannot read taxation of costs that are not enumerated choice of the the word “statute” in 1920. Not does rule 2412(a)(1) including both traditional “specifically provide” fail [to] an ex- Rather, statutes and the federal rules. 2412(a)(1), ception to it is also not a Congress’s sig- use of the word “statute” statute, promulgated and it was under a nals a conscious decision to limit grant authority that does not include sphere possible exceptions to the EAJA sub- government’s waive the by Congress signed by laws drafted stantive the President’. right to be free from suit. See, Britton, e.g., 523 U.S. 18. Rule is11 similar to rule 54 in that it also 17. Crawford-El 574, 594, 1584, distinguishes between the terms "rule” and 118 S.Ct. 140 L.Ed.2d 759 pleadings "statute.” It need not (1998) (stating that the text "[n]either "[e]xcept be verified affidavit when other- statute, any 1983 or other federal nor the specifically provided by wise rule or statute.” Procedure, Federal provide Rules of Civil 11(a). Similarly, the Federal FedR.Civ.P. ...”); Stinnett, Jackson v. Bankruptcy provide Rules of Procedure (5th Cir.1996) (discussing Enabling the Rules prevailing "[t]he court allow costs to the finding "[ajlthough Act Congress has party except when a statute of the United legisla- authorized the Court to exercise some provides.” States or these rules otherwise authority regulate tive the courts ... [it] 7054(b). Fed. R. Bankr.P. The Federal Rules abridge by time amend or statute distinguish of Criminal Procedure also be- the Federal Rules of Civil Procedure ... or statutes, providing tween themselves and procedural promulgated other federal rules "[ejxcept provided by as otherwise a statute Act”) (internal Enabling rules, under the Rules cita- permit or these the court must not omitted). taking photographs tions in the courtroom dur- ing judicial proceedings.” Fed.R.Crim.P. . Maj. atOp. 1948 See from FTCA Relying on States v. 457 n.15. United majority’s claim there is Finally, Cab, 547 n. 71 S.Ct. Yellow 340 U.S. 2412(a)(1), FTCA, than rather that the (1951), majority then 95 L.Ed. of assess purposes the relevant statute version of the argues that the current Maj. Op. at immunity. See ing sovereign continuing to should be read as FTCA n.11, tough 457 n.15.19That is indeed carry policies repealed out the stat make, given that the FTCA’s claim to 931(a) (1946) (quoted ute 28 U.S.C. only in terms of immunity speaks waiver of Cab, at 547 n. Yellow claims,”20 a separate and there is “tort 399.). than to no other purpose statute that has majority reads far too much into may be on which costs specify the terms Cab, it was specified Yellow government. Compare taxed being reading the old and new statutes 2412(a)(1). 2674, § “It § with the consistent with one another because statutory con elementary- of an tenet is had dispute material to its been provisions ‘[wjhere no there is clear struction that 2674, only §in mi- largely reenacted with otherwise, will specific statute intention changes “phraseology.” nor in Id. by general or nullified not be controlled contrast, to provisions the relevant the ” Guidry v. Sheet Metal Workers one.’ dispute were not reenacted the present 365, 375, 110 Fund, 493 U.S. Nat’l Pension any form. Yellow Cab therefore FTCA (1990) 680, (quoting 107 L.Ed.2d 782 S.Ct. majority’s conclu- no for the basis 535, 550-51, Mancari, v. 417 U.S. Morton by repealed lan- sion that we are bound (1974)). 2474, Be 41 L.Ed.2d 290 § undergirds guage supposedly that specific § far the more cause 2412 is (and valid) language plain the rather than government’s topic on the statute 2412(a)(1). §of in over liability for it controls distinguish- if were not Even Yellow Cab § drawn from 2674’s ferences that be basis, not provide that it still would able on gov the effect that the broad statement to majority’s analysis. Yel- support for the claims” on the is liable for “tort ernment years a mere three was decided low Cab other parties. same terms as revision, and the Court after the FTCA’S post- only pre- of the FTCA into needed to reconcile To refíne its view of the same statute. reasonably control versions might that amendment statement however, 2412(a)(1), later, we are re- century the ma- Half a specific terms of significance quired also to consider that was removed jority points language provide purpose except to majority that can have no strange position for the 19. That is a take, portions already of the text to because the is well to a false comfort correspond discuss sov- footnotes which those position. support for aware of the dearth immunity' the correct ereign in the context of statute, 2412(a)(1), Maj. FTCA. See not the government disputes was that the 20. No one majority's footnotes in Op. 457. The underlying the Gaddises’ not immune from clarify way manner in which rule no claim, bring even the cannot tort 2412(a)(l)’s specific exception to provides a request guardian's to assert that the itself instead, they immunity; limited waiver of against the a "tort claim” fees constitutes muddy waters. If only serve further Instead, is the issue United States.. correct, the discussion in the footnotes immunity respect with the waiver of .whether wholly majority opinion extra- body is n tothe Gaddises’ encompasses liti- claim also therefore, best, those footnotes At neous. the course of trial. holding gation incurred in ''alternative” constitute but another than I Congress advocating. Applying has enacted the one am the statutes holding a far intervening years: the court’s more common problem request payment for the enacted, may At time a statute —a attorney’s fees—it must also be the case plausible meanings. range of have a 2674 of the FTCA continues to em- time, however, subsequent acts can Over body provisions the relevant of the old shape meanings. or focus those 931(a). statute, § flatly pro- That statute many judicial reconciling task of “classic time, awarding attorney’s hibited courts from getting over laws enacted combination, government in a tort case. them to ‘make sense’ Cab, See Yellow at 547 n. U.S. necessarily implica assumes purports S.Ct. 399. The EAJA to soften altered tions of a statute be by allowing an restriction award implications of a later statute.” United [439, 453, attorney’s fees some tort cases under Fausto, v. States (1988) 2412(b), see, States, e.g., Stive v. United This ]. 98 L.Ed.2d 830 Cir.2004), while still particularly scope so where the refusing require imposed, is broad but the subse earlier statute even cases where the takes quent specifically statutes more address 2412(d)(1)(A). unjustified position, see recognized topic at hand. As we recently in United States Estate of majority’s holding, Under the courts will Romani, 517, 530-31, 118 [523 U.S. required repealed be to look to the lan- 1478, 140 (1998),] specific L.Ed.2d 710 “a 931(a), guage and not to to policy embodied in a later federal stat attorney’s may determine whether fees be ute should control our construction of against government allowed the in an statute, though the even it [earlier] ha[s] 931(a) prohibits FTCA case. Because expressly been amended.” cases, majori- those awards all tort the Food Drug & Admin. v. Brown & Wil ty’s holding ultimately will inure to the 120, 143, Corp., liamson Tobacco great detriment plaintiffs seeking re- (2000). 146 L.Ed.2d government dress for wrongs. Even if requires Yellow Cab us to as- majority simply The cannot so escape sume post-amendment that the FTCA the limitations imposed on the waiver of originally costs, applied to the taxation sovereign immunity. Because we required would still challenge be to litem fees are not listed in they do assumption that it became when inconsis- 2412(a)(l)’s not fit within requirements. intervening tent with statutes. Because We should reverse this basis well. Congress drafted a new statute that di- rectly subject addresses the we C. just cannot ignore preference it in for lan- Finally, even if the correctly

guage that repealed was in 1948.21 that may holds ad litem fees be taxed irony majority’s position 17(c), the is against government the under rule position likely up being to end merely affirming errs in rather than re- even more to favorable the manding. A remand appropriate, be- beyond It gener- is also cavil that attorney's against the EAJA award govern- fees the ally applies against govern- to tort suits position ment when it takes an unreasonable act, ment. One exception subsection at trial. No such would be neces- 2412(d)(1)(A), specifically exempts sary apply tort if the EAJA did not otherwise to provision cases brought from the against government. mandates an tort claims 54(d)(1), the district court used rule to cause tax costs stems from rule 17(c), 17(c), 54(d). rule as the basis for its order not rule Had the district taxing ad litem costs. power, known of this it may well equitable have found it more require to majority’s opinion provides own dis- minor, for whom the ad litem was appoint- authority trict courts the to determine ed, apply portion some of his [wjhether compensation payable $4,083,103.66 recovery toward the ad li- (1) ad litem will be treated $46,299 tem ’s fee. as a court cost to be taxable (2) changes “When law in unanticipated nonprevailing party or as an expense ways during an ... appeal this court will payable to be out of funds recovered generally remand a new trial give by or payable incompe- the minor or parties the benefit of the new law and the person guard- tent on whose behalf the opportunity present evidence relevant to ian appointed. ad litem was new standard.” Deffenbaugh- Maj. Op. at 454. In doing, opinion so Stores, Inc., Williams v. Wal-Mart arms district courts with a level of discre- Cir.1999). “The motiva- tion in applying rule is more tion of this rule is fairness: to prevent 53(h)(2) akin to that found in rule than in injustice to a party who had no reason to 54(d)(1). rule The court need not tax the expect changed rule at the time of trial.” full amount of the costs the losing Id. 54(d) party, as require, rule would instead among accepting allocate the burden Even majority’s eminently parties in the manner it finds equita- opinion most flawed that ad litem 17(c), ble. taxed as costs under rule appro- priate remedy is to remand so that Nevertheless, by affirming instead of re- district court can apply newly-created manding, denies this discre- powers under rule to determine the very tion to the court for which it was equitable most allocating means of the ad created: the district court in the instant among litem’s fees parties the as it sees case. There is no doubt that the district fit. 54(d) exclusively court relied on rule crafting its order taxing the II.

government: This court’s decisions unam- biguously have held that the tax majority also affirms on the “alter- 54(d);22 ad litem fees ground derived from rule appointed native” that a court the ad litem moved to have his fees taxed ad litem is one of the items of the pursuant as costs by Congress taxable costs enumerated 54(d); to rule ap- and the district court Specifically, majori- 1920. proved the order in reliance on our ty guardians duPont finds that ad litem are court 1920(6). line of cases. appointed experts under The district court had no idea that it was It is notable that the repeated- empowered “reasonable,” to distribute the burden of ly defends its view any ad litem’s party 454, fees on other than Maj. Op. never as correct. See 457. government. Nor could it have: To- That particularly surpris- reluctance is not day’s decision provide is the first to ing: plaintiffs Even the concede that the See, duPont, ("As e.g., properly 771 F.2d at 882 an ian ad litem are taxable as costs court, 54(d).”). guard- officer of pursuant of a to Fed.R.Civ.P. com- In addition this incorrect, they the same name. is reading majority’s appointed ex- the term “court usage, mon it. conces- That any reliance disavow synonymous with in fact defined as pert” is court from keep this ordinarily would sion expert ap- An who is expert. “impartial because argument, entertaining even unbi- present an by the court pointed an means issue concession “party’s 706.” opinion.... ased may not be revived.” Fed.R.Evid. is waived issue Dictionary ed.1999). (7th 760, States, 328 F.3d BlaCk’s v. United Law Smith Cir.2003). by legislative reinforced This view report history. The House Committee joins But if one even 1920(6) ref- “express is an concession, ma- appellees’ ignoring compensation to the taxation erence holding is mani- “alternative” jority’s first permitted appointed expert, court of a erroneous, interpretation an both as festly Evi- 706 of the Federal Rules of by Rule of that application the statute and as 95-1687, 95th H.R.Rep. No. dence.”23 of this the facts case. statute to reprinted in Cong., 2d Sess. text also reading of the majority’s strained result, As a U.S.C.C.A.N. maxim that we construe waiv- violates the ex- meaning appointed of “court plain narrowly and in immunity sovereign ers of 1920(6), a specific §in perts,” as used sovereign. favor of appointed rule experts reference to under A. guardians not include 706 and does 17(c). under rule appointed Fed. Cf. according interprets statutes This 706; Fed.R.Civ.P. 17(c). R.Evtd. meanings. Bank plain Conn. their contrast, posits guard- In Congo, 309 F.3d Republic Commerce (5th Cir.2002). ordinary, contempo- fit the determining “In ians ad litem that, meaning of the term rary, and meaning, we assume common plain statute’s definition, expert,” just contrary ‘Congress appointed “court because absent charged “liaise with the court and are in its the words enactments intends duty of their contemporary, important providing com- carry ordinary, with their ” judicial process is or Greenway, insight re as to how meaning.’ mon (5th Cir.1996) the best interests of (quoting comporting Pioneer is not with Assoc., Maj. Op. at 457. That claim the minor.” Inv. Serv. v. Brunswick unconvincing, vague for the same de- 380, 388, 123 L.Ed.2d 74 is omitted). (1993)) (internal a applied to number quotation scription marks could otherwise parties that references phrase “court plain meaning The by name. 1920(6) §in is that it is appointed experts” are example, interpreters under For selected experts appointed a reference judicial by “presiding appointed The rule Rule of Evidence 706. Federal trial, question and there is no Ex- officer” at Appointed is titled “Court likewise a they apply their skills refer to but that toward perts,” consistently and courts judi- that is essential fair under rule discrete task appointed individuals however, majority’s con- a to the inverse of the majority dismisses that statement The footnote, Congress paid heed arguing of "court clusion. indeed little that the If inclusion to include the fees appointed experts” in such an to its decision was appointed experts in it is more afterthought any explanation far for its inclu- familiar, a Maj. likely the term is used in presumptively unreliable. See sion is novel, leads, way. opposed Op. 457 n.13. That observation 1920(6), cial administration. 28 U.S.C. phrase that has a far more Cf. reporters. The same is true of court Fed- natural —and limited—connotation as a eral law that “[e]ach district court reference to experts.25 rule 706 However of the United States ... shall appoint one valuable or important the duties of an ad reporters,” more court are, they do automatically not make certainly and theirs unique skill that is appointed someone perform that func- applied problem to a discrete in trial man- tion a appointed “court expert.” agement. majority’s interpretation also vio- Yet, despite the “expert” status of re interpretive lates the canon that “where porters interpreters majori under the general specific words follow words in a rule, ty’s new their fees receive individual statutory enumeration, general words 1920(2) (6). § ized mention are construed to only objects embrace sim- majority’s reasoning ignores therefore ilar in objects nature to those enumerated maxim that courts should avoid an inter preceding specific words.” Wash. pretation of a statute that “renders some Dep’t State Social & Health Servs. v. altogether words Gustafson, redundant.” Guardianship Keffeler, Estate 574, 115 513 U.S. at S.Ct. 1061.24 371, 384, 154 L.Ed.2d 972 (2003).

Accordingly, it something takes more quite Section 1920 is specific in than a court appointment and responsibili- providing for the taxation of costs incurred ty over an “important duty” to qualify as a by particular clerk, individual: The mar- court appointed expert within meaning shals, court reporters interpreters 1920(6). §of regard, this it is telling specifically provided Moreover, all for. that an ad litem need not even be an descriptions these job to the officials’ refer expert qualify appointment under titles, merely to the attributes 17(c). rule bring position is, to that list in other —the words, taxonomical, not descriptive. “Qualification cannot in guardian occur ad litem situations because no recognized Against backdrop, the ordinary pre- area of general expertise regard with to sumption is that the phrase appoint- “court ‘custody’ placement’ or ‘child exists.” R. expert” ed a similarly specific reference Hollingsworth, Lidman & B. The Guard- official, to the title of a court not a broad ian Custody ad Litem in Child Cases: the description of the skill possessed by set Contours System Our Judicial individual who serves the court. It means Beyond Recognition, Stretched Ma- Geo. very persons ordinarily who would be (1998). No matter how referred to as “court appointed experts,” son L.Rev. possessed by valuable are the skills an ad appointed by those who were litem, legal system does not generally and generally could be pos- described as refer to them “experts.” sessing expertise. some measure of Be- I cannot presume that the lone excep- cause rule experts ordinarily are re- tion to practice Congress’s this choice of ferred to appointed experts,” as “court phrase appointed the “court experts” they statute; fit guardians within the ad majority sweeps 24. argument, The also into its fold mas- 25. At oral the ad litem disclosed appointed serving that this though ters was his first time in that under rule even the capacity. competently only That he did so independently provide rules a means for their underscores the fact that an ad litem can be a compensation. 53(h). See Fed.R.Civ.P. novice, yet satisfy relative still all the requirements job. 2412(a)(1). Maj. Op. at §in See immunity do not. rule litem under appointed court is right. The That is half 17(c). 457. 706; Fed.R.Civ.P. Fed.R.Evid. Cf. waives im- to note the EAJA correct that B. that are “enumerat- for those items munity 1920.” ed section correctly that holds majority if the Even 2412(a)(1). But, majority the § what fails “experts” be litem could ad guardians opinion is as 1920(6), acknowledge is that its it would to meaning of within the 2412(a)(1) as it holding to the interpretation that much an apply to be absurd denigrate majority I not mean This is because case. do is of present case, in this litem the words “as identify meaning of the ad the services must job accounts, his performed who, by finding all in section 1920” before enumerated Nevertheless, diligently. competently its immu- has waived government that the as an appointment of his the circumstances taxation of costs. nity for the anything resem- fall far short of ad litem result, it majority’s view that As a appointment qualification and bling the any possible interpretation adopt can expert. an tenuous, matter how strained no for the moved originally The Gaddises waivers of immuni- violates the maxim that and recom- an ad litem appointment “beyond what the ty enlarged are not to be designated person this be mended that Village, Nordic requires.” language summation capacity. Their in that serve Williams, 1011; at U.S. reads, entirety: in its qualifications of his Even if at 115 S.Ct. 1611. U.S. respectfully request Plaintiffs would § 1920 in the manner possible interpret George appointed be attorney Bean nothing by adopted —because Mr. Bean is for the Minor. Ad Litem conclusively forecloses its in the statute facts of the general with familiar There is noth- enough. is not view—that willingness expressed his and has case 2412(a)(1) ing in either 1920 or by pending approval serve as ad majori- compelling even comes close Court. has ty’s government view that the waived familiarity of a possession general immunity from taxation of its serve, willingness to subject, and a with a as costs. ad litem fees expert an in that not make someone do particular Because this field. ap- expertise and was not III.

possessed no an there is no basis pointed expert, to be third, majority’s I now come to majority’s that his fees for the conclusion final, its explanation self-described party on taxed an adverse Maj. proper” Op. “fair and result. theory costs incurred next version of this “alternative” “expert.” prior all holding, majority argu- throws

C. window, and holds that ments out the nothing. much ado Because case is about “alterna- asserts this the same previously have reached re- we and clear of holding tive” exists free considering arguments sult without concerns, sovereign immunity because ap- in this presented litem are enu- finding guardians them, rejected obviously peal, we have tantamount to a within 1920 is merated says majority, so we shouldn’t has the waste finding government that the waived today considering time their Fitting, merits.26 is that parties in those cases did not make the argument same that the logic approach The of that is overwhelm- put has forward here. Be ing. Surely it is not that better we leave Dickerson, 478; Lebron, cause at F.3d tough questions three-judge to a panel 332; Gibbs, 279 F.3d at at that did not consider than question, 506, make no mention of Fitting, judges the collective wisdom of sixteen Crawford they do not proposition stand for the having who have the benefit of the issued government’s arguments upon based orally argued. majority’s briefed and that case are without merit. To the con approach purpose serves no absolve trary, only significance of those cases the en court of responsibility banc for they is that original bound the panel obvious, reaching relatively unpalata- if this case to a result that could not be ble, government’s posi- conclusion squared with Fitting. In other tion is the correct Crawford one. words, we took this case en banc to consid This final holding “alternative” rests on er whether error; those decisions are in the proposition Fitting Crawford is an insufficient answer merely to observe inapposite question to the guard whether panels those reached a decision. ian ad litem fees be taxed as costs. conclusion, To Likewise, reach its first there significance is no to the favorably observes that we have cited the fact that Fitting fails to mention Crawford years duPont line of cases for several after “guardian the term ad litem.” This is Fitting thereby upheld have because the case creates a rule of exclu- Crawford right of district courts to tax sion, inclusion. Fitting, Crawford 54(d)(1). Maj. fees as costs under rule See the Court specifically rejected the view “ Op. at 457 & n.16. preclude 1920 does not taxation of listed,” beyond costs above and the items Further, reasons, Crawford 54(d) as well as the view that “Rule is a Fitting no present has relevance to the separate source of to tax as costs “[njeither dispute, because term enumerated 1920.” ‘guardian phrase ad litem’ nor the ‘guard- 441, Fitting, 482 U.S. Crawford ian ad appears anywhere litem fees’ in the 2494. Supreme Court’s decision in Fit- Crawford ting.” Lastly, Id. at 458. the majority held, terms, Instead it in no uncertain reasons, there are a variety of states in 54(d) that costs are only taxable under rule applying “state courts respec- their they if among those items that Con- tive state statutes” have found that ad gress specifically enumerated in 28 U.S.C. cost; litem fees are taxable items of as a Indeed, “§ 1920 defines the term result, federal provide statutes must 54(d),” ‘costs’ as used in rule and “no the same result. Id. reading provisions reasonable of these to- inference to be drawn from gether can lead to conclusion” that [the] fact that our recent cases have taxed ad items of cost though be taxed even litem fees without mentioning they are not enumerated in 1920.27 Id. States, 26. See Dickerson v. Pitting United 280 F.3d on duPont nor address the (5th Cir.2002); Lebron v. today's United opinion. issues raised in States, (5th Cir.2002); 279 F.3d Gibbs, Any concerning Gibbs Cir. doubt that result re- 2000). duPont, statement, rely entirely subsequent Those cases moved in W. Va. potential impact Hosp., Casey, neither discuss the Univ. Inc. v. U.S. 476 may stating ad litem fees that provisions in the this result reached

That the Court addition, majori- fees taxed as costs. expert witness be that finding context of statutes, evident- speci- ty amount relies on several state taxed may not be above 1821(b) fa- they compare will hope is of that ly §§ in the in U.S.C. fied They do not. vorably § lower to Court instructs If the no moment. majority pro- only by items tax the six cited they may Illinois statute that courts special litem or holds that “A ad §in and then vides: listed reason- item, to such we bound is entitled administrator not tax a seventh may by say “nor this as be fixed compensation decision able apply that ninth, proceed- item in the nor this tenth taxed as costs court to be nor this eighth, of administra- paid in due course ings and either.” Comp. III. tion.” 755 Ann. 5/27-4 Stat. context, ad litem Outside (West 2004). Similarly, Michigan stat- Fitting to hold applied have we Crawford by provides: ute relied on tax, as may not a federal district court that may be allowed ad litem “The preparing in incurred ap- by the court compensation reasonable that item because videotaped depositions, him, as paid to be and taxed pointing v. list. Mota not found 1920’s by as directed proceedings cost Ctr., Health Science Tex. Houston Univ. of Comp. court.” Laws Ann. Mioh. Cir.2001). (5th Like 512, 529-30 2004). (West 600.2045(2) not taxable wise, fees are video technician production are the nor under expressly provide for Ml of these states v. Penrod Coats “blow-ups” of exhibits. guardians as compensation (5th 877, 891 Cir. Drilling Corp., 5 F.3d cost, something federal law a taxable court 1993). pres analogy to the In the closest general is a rule flatly “[I]t does not do. fees are case, that a mediator’s we held ent law, distinguished at that actions and, as a by 1920 either covered not may not equity, costs be from suits in the result, as costs may not be taxed rule of allowed in the of statute or absence Mota, F.3d Fitting. wake Ingen, authorizing relief.” Van such 530.28 many supra, “[I]n 30 A.L.R.2d 1148 express- jurisdictions the have been courts claiming majority also errs to tax as ly authorized statute costs practice reinforced conclusion is ad li- guardians fees for services citations reveal courts. Its in state own tem.” Id. taxable costs litem fees are that ad state statutes states because those Congress to decide whether up It is provide for specifically rules procedural may be taxed as guardian ad litem fees rules way the federal result form, the present In its statute costs. statutes do not. topic address Congress enacted to shown, Alabama, to enumerate fees fails already I have As cost, and, result, Tennessee, as a Carolina, as a taxable item of Mississippi, North taxed under rule specific contain ad litem fees procedural Texas rules Carnahan, (1991), that in 28. See also Brisco-Wade L.Ed.2d Cir.2002) (holding Fitting "held that the Court extent of a 1821] 1920 and full taxing [§§ define mediation 1920 does authorize litigation court's shift costs). federal statutory authority go express fur- absent ther.” 54(d), any more than can the CO., Coats, FETZER Mota, SCOTT Delaware and Brisco-

disallowed Corporation, chooses, Defen- it can fix this Plaintiff-Counter Congress If Wade. 1920; dant-Appellant-Cross-Appellee, by amending unless and result so, Fitting pre- until it does Crawford taxing guardian cludes district courts from litem fees. INC., HOUSE OF VACUUMS a Texas Corporation, Defendant-Counter argu- I all Although repeat will not Claimant-Appellee-Cross-Appellant. I.B, I part supra, sovereign

ments make in immunity also bars the result advocated No. 03-51118. holding. in this “alternative” Fitting so even if This would be United States Court of Appeals, decided, or had never been had been de- Fifth Circuit. cided in a manner consistent with that Aug. dissenting opinion today’s

case’s ma- jority opinion. Regardless of the courts’ 54(d)(1),

power to tax costs under rule immunity has waived its from §in as enumerated 1920. See 2412(a)(1).

rv. majority opinion

One sentence up the

sums real reason for its decision to

affirm the district court: recognize underlying

While we Supreme gave

treatment Court 54(d) interplay between Rule Fitting, we are re-

luctant to and apply any thus do not proscription

such here to the taxation of

guardian ad litem fees as costs.... added).

Maj. Op. at (emphasis 457-58 Re-

luctance to reach a result

perceives unpalatable is no excuse for

ignoring controlling Supreme prece- Court for re-writing

dent or rules and statutes. powers properly

Those lie with I others. respectfully

therefore dissent.

Case Details

Case Name: Gaddis v. United States

Court Name: Court of Appeals for the Fifth Circuit

Date Published: Aug 12, 2004

Citation: 381 F.3d 444

Docket Number: 02-41655

Court Abbreviation: 5th Cir.