Gaddis v. U.S.

Citation381 F.3d 444
Decision Date12 August 2004
Docket NumberNo. 02-41655.,02-41655.
PartiesCarlton GADDIS and Latanza Gaddis, Individually and as Next Friend of Courtlin Gaddis, a Minor; Courtlin Gaddis, a Minor, Plaintiffs-Appellees, v. UNITED STATES of America, et al., Defendants, United States of America, Defendant-Appellant.
CourtUnited States Courts of Appeals. United States Court of Appeals (5th Circuit)
381 F.3d 444
Carlton GADDIS and Latanza Gaddis, Individually and as Next Friend of Courtlin Gaddis, a Minor; Courtlin Gaddis, a Minor, Plaintiffs-Appellees,
v.
UNITED STATES of America, et al., Defendants,
United States of America, Defendant-Appellant.
No. 02-41655.
United States Court of Appeals, Fifth Circuit.
August 12, 2004.

Appeal from the United States District Court for the Eastern District of Texas.

Page 445

COPYRIGHT MATERIAL OMITTED

Page 446

Paul F. Ferguson, Jr. (argued), James Erick Payne, Gregory F. Cox, Provost Umphrey, Beaumont, TX, for Carlton Gaddis, Latanza Gaddis and Courtlin Gaddis.

George Emerson Bean (argued), Chambers, Templeton, Cashiola & Thomas, Beaumont, TX, for Courtlin Gaddis.

Page 447

William George Cole (argued), U.S. Dept. of Justice, Civ. Div.-Appellate Staff, Washington, DC, for Defendant-Appellant.

Before KING, Chief Judge, and JOLLY, HIGGINBOTHAM, DAVIS, JONES, SMITH, WIENER, BARKSDALE, EMILIO M. GARZA, DeMOSS, BENAVIDES, STEWART, DENNIS, CLEMENT, PRADO, and PICKERING, Circuit Judges.

DeMOSS, Circuit Judge:


We took this case en banc to consider whether guardian ad litem fees could be taxed against the government in a Federal Tort Claims Act ("FTCA") case, in light of Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987). For the reasons that follow, we conclude that federal district courts may continue to choose to tax guardian ad litem fees as court costs against nonprevailing parties, including against the government in an FTCA case. We thus AFFIRM the decision of the district court to tax guardian ad litem fees against the government here.

BACKGROUND

The panel, in Gaddis v. United States, 70 Fed.Appx. 190, 191 & n. 1 (5th Cir.2003) (unpublished), gave a concise statement of the facts and background, which we reproduce below:

Carlton and Latanza Gaddis were stopped at a street intersection when a postal employee drove his government vehicle into theirs. Latanza, who was pregnant, initially suffered minor discomfort, but a few weeks later she prematurely delivered their son, Courtlin, with serious birth defects. The Gaddises sued the United States under the Federal Tort Claims Act ("FTCA"), 28 U.S.C. § 2671 et seq., for negligence. They requested, and the district court appointed, a guardian ad litem for Courtlin.1 After a bench trial, the court found the United States liable for Courtlin's injuries and awarded the Gaddises over $4 million in damages. The court also taxed as costs $46,299 in guardian ad litem fees against the government under Fed.R.Civ.P. 54(d)(1).

The Gaddis parents had moved for the appointment of George Bean ("Mr. Bean") as guardian ad litem for Courtlin to represent his interests in the automobile accident litigation. The government opposed such appointment as premature, arguing that there was no allegation of a conflict of interest among the Gaddises nor of any prejudice to Courtlin's interests. In reply, the Gaddis parents urged that Federal Rule of Civil Procedure 17(c)2 authorizes the court appointment of a guardian ad litem in cases involving minors and that Courtlin should be appointed a guardian

Page 448

ad litem to ensure that no one take an unfair advantage in relation to him. The district court agreed with the Gaddis parents and appointed Mr. Bean as guardian ad litem "to represent the interests of the minor Plaintiff, COURTLIN GADDIS, in the [] litigation." The district court further ordered that "the fees charged for the Ad Litem's services be reasonable and necessary for representation of the Minor" and that "the fees charged shall be taxed as court costs subject to approval by the Court."

After the bench trial concluded with a finding of government liability, Mr. Bean filed a motion for his guardian ad litem fees and requested they be charged against the government as costs pursuant to Federal Rule of Civil Procedure 54(d).3 The government opposed the motion on several grounds. The government relied on Crawford Fitting for its claim that the district court lacked subject matter jurisdiction to award Mr. Bean guardian ad litem expenses as costs under Rule 54(d) at all, and specifically to tax such costs against the government because the government in 28 U.S.C. § 2412(a)4 had only waived its sovereign immunity to pay for costs as enumerated in 28 U.S.C. § 1920,5 and guardian ad litem fees are not included in § 1920. The government also contended that even if the court could award the guardian ad litem fees as costs, most of Mr. Bean's claimed expenses were for

Page 449

his legal work as an attorney on behalf of Courtlin, not for services provided as Courtlin's guardian ad litem.

The district court then held a hearing to determine issues pertaining to the entry of judgment concerning Courtlin. During that hearing, the court fully considered the government's arguments regarding the taxation of guardian ad litem fees and determined that it was bound to follow our post-Crawford Fitting precedents in Dickerson v. United States, 280 F.3d 470, 478 (5th Cir.2002); Lebron v. United States, 279 F.3d 321, 332 (5th Cir.2002); and Gibbs v. Gibbs, 210 F.3d 491, 506-08 (5th Cir.2000), which cases all allowed for the taxation of the prevailing party's guardian ad litem fees as costs under Rule 54(d), but not including fees attributable to any legal services performed by the guardian ad litem.6 These three cases were decided after Crawford Fitting, and the district court correctly pointed out that the Dickerson and Lebron cases both specifically involved the taxation of guardian ad litem fees against the government where the plaintiff had prevailed in an FTCA claim.

After determining that it could properly tax Mr. Bean's guardian ad litem fees against the government, the district court proceeded to analyze Mr. Bean's expenses in this case — attempting to distinguish between Mr. Bean's time spent as Courtlin's guardian ad litem (taxable against the government as a cost) versus his time spent serving as a legal advisor to Courtlin (certainly entitled to be paid, but not chargeable against the government as a cost). After a thorough analysis, which took place at the hearing, the court disallowed $1687.50, which appeared to be in the nature of attorney's fees, and allowed a total of $46,299.00 as legitimate guardian ad litem fees. In the final judgment, the district court concluded that "the United States shall pay, as a taxable cost of court, the Guardian Ad Litem's fee in the amount of $46,299.00."

The government timely appealed the taxation of guardian ad litem fees only, and a panel of this Court, in a per curiam unpublished opinion, affirmed the award of costs. We agreed to hear the case en banc.

DISCUSSION

Here, the government seeks further review of the discrete legal issue of whether guardian ad litem fees are taxable costs at all, or are at least not taxable against the United States. As the panel indicated, this is a pure question of law subject to de novo review. See Roe v. Tex. Dep't of Protective & Regulatory Servs., 299 F.3d 395, 400 (5th Cir.2002).

Whether a district court may tax guardian ad litem fees as costs against the nonprevailing government in an FTCA action.

Regarding this issue, the government made the same arguments on appeal as it did in the district court, and as it makes here to the en banc Court. First, the government claims the Supreme Court has ruled in Crawford Fitting that the costs allowed by Federal Rule of Civil Procedure

Page 450

54(d) to a prevailing party in a federal proceeding are limited to those itemized in 28 U.S.C. § 1920, which does not include any provision relating to guardian ad litem fees. Second, the government submits that under Rule 54(d) and 28 U.S.C. § 2412(a)(1), costs may be levied against it, but only as enumerated in § 1920; that is, the government has waived none of its sovereign immunity as to costs not authorized by statute.

In Crawford Fitting, the Supreme Court explained that 28 U.S.C. § 18217 limits the amount of litigants' witness fees awardable, and § 1920 allows a court to tax such fees as costs only within those limits. 482 U.S. at 441-42, 107 S.Ct. 2494. In the absence of statutory or contractual authorization for more generous payments, federal courts are constrained by the $30-per-day (now $40-per-day) cap when ordering one side to pay for the other's expert witnesses. Id. at 444-45, 107 S.Ct. 2494. Crawford Fitting involved two cases of awards to prevailing parties that covered all the expenses reasonably incurred for their experts, bestowed under the authority of Rule 54(d) as costs. The Court rejected the excessive awards, concluding that "absent explicit statutory or contractual authorization for the taxation of the expenses of a litigant's witness as costs, federal courts are bound by the limitations set out in 28 U.S.C. § 1821 and § 1920." Id. at 445, 107 S.Ct. 2494. In coming to that holding, the Supreme Court considered the interplay among Rule 54(d), § 1920, and § 1821(b):

Petitioners argue that since § 1920 lists which expenses a court "may" tax as costs, that section only authorizes taxation of certain items. In their view, § 1920 does not preclude taxation of costs above and beyond the items listed, and more particularly, amounts in excess of the § 1821(b) fee. Thus, the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in § 1920. We think, however, that no reasonable reading of these provisions together can lead to this conclusion, for petitioners' view renders § 1920 superfluous. If Rule 54(d) grants courts discretion to tax whatever costs may seem appropriate, then § 1920, which enumerates the costs that may be taxed, serves no role whatsoever. We think the better view is that § 1920 defines the term "costs" as used in Rule 54(d). Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in...

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