Gaddis v. United States , 70 F. App'x 190 ( 2003 )

United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2003
In the Charles R. Fulbruge III
Clerk
United States Court of Appeals
for the Fifth Circuit
_______________
m 02-41655
Summary Calendar
_______________
CARLTON GADDIS; LATANZA GADDIS,
INDIVIDUALLY AND AS NEXT FRIEND OF COURTLIN GADDIS, A MINOR;
COURTLIN GADDIS, A MINOR,
Plaintiffs-Appellees,
VERSUS
UNITED STATES OF AMERICA; ET AL.,
Defendants,
UNITED STATES OF AMERICA,
Defendant-Appellant.
_________________________
Appeal from the United States District Court
for the Eastern District of Texas
m 1:00-CV-34
_________________________
2
Before HIGGINBOTHAM, SMITH, and ther, it argues that guardian ad litem fees are
CLEMENT, Circuit Judges. not taxable costs at all or at least not against
the United States. We review this question of
PER CURIAM:* law de novo. Roe v. Tex. Dep’t of Protective
& Regulatory Servs., 299 F.3d 395, 400 (5th
The United States appeals a judgment or- Cir. 2002).
dering it to pay guardian ad litem fees as a tax-
able cost. Based on our precedents, we affirm. The government contends, in four steps,
that no rule or statute authorizes a court to tax
Carlton and Latanza Gaddis were stopped guardian ad litem fees as costs against a losing
at a street intersection when a postal employee party. Rule 54(d)(1) states that “costs other
drove his government vehicle into theirs. La- than attorneys’ fees shall be allowed as of
tanza, who was pregnant, initially suffered course to the prevailing party unless the court
minor discomfort, but a few weeks later she otherwise directs[.]” FED. R. CIV. P. 54(d)(1).
prematurely delivered their son, Courtlin, with Next, the Supreme Court has held that “[28
serious birth defects. The Gaddises sued the U.S.C.] § 1920 defines the term ‘costs’ as
United States under the Federal Tort Claims used in rule 54(d).” Crawford Fitting Co. v.
Act (“FTCA”), 28 U.S.C. § 2671 et seq., for J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).
negligence. They requested, and the district Sect ion 1920, in turn, lists several items but
court appointed, a guardian ad litem for does not include guardian ad litem fees. Thus,
Courtlin.1 After a bench trial, the court found the government concludes, the court may not
the United States liable for Courtlin’s injuries tax the fees as costs against the losing party.
and awarded the Gaddises over $4 million in
damages. The court also taxed as costs This sleek reasoning flatly contradicts our
$46,299 in guardian ad litem fees against the caselaw. In duPont v. S. Nat’l Bank, 771 F.2d
government under FED. R. CIV. P. 54(d)(1). 874, 882 (5th Cir. 1985), we held that “[a]s an
officer of the court, the expenses of a guardian
The government appeals a discrete legal is- ad litem are properly taxable as costs pursuant
sue. It does not challenge the finding of liabil- to FED. R. CIV. P. 54(d).” DuPont preceded
ity, the damages, or the calculation of guardian Crawford Fitting, and the government argues
ad litem fees, which we would review for that Crawford Fitting implicitly overruled du-
abuse of discretion. Dickerson v. United Pont. In three recent cases, however, we cited
States, 280 F.3d 470, 478 (5th Cir. 2002). Ra- duPont as good law and treated guardian ad
litem fees as taxable costs as long as the
guardian acted as a guardian ad litem, not an
*
attorney ad litem. See Dickerson, 280 F.3d at
Pursuant to 5TH CIR. R. 47.5, the court has 478; Lebron v. United States, 279 F.3d 321,
determined that this opinion should not be pub-
332-33 (5th Cir. 2002); Gibbs v. Gibbs, 210
lished and is not precedent except under the limited
F.3d 491, 506 (5th Cir. 2000).2
circumstances set forth in 5TH CIR. R. 47.5.4.
1
Mr. and Mrs. Gaddis, who also sued the
United States for loss of consortium with Courtlin, 2
The United States concedes that, if guardian
feared that an unexpected conflict of interest with ad litem fees are taxable costs, $46,299 is a
Courtlin might occur during the litigation. (continued...)
3
The government relegates these cases to a at 332-33. Thus, we must adhere to our
footnote and asks us to disregard them be- position that § 2412(a)(1) waives sovereign
cause they do not cite Crawford Fitting. Yet, immunity against the taxed cost of guardian ad
we must follow the decisions of our panels. litem fees.
Roark v. Humana, Inc., 307 F.3d 298, 313
(5th Cir. 2002), petition for cert. filed (June AFFIRMED.
20, 2003) (No. 02-1845), and petition for cert.
filed (June 3, 2003) (No. 02-1826). We
therefore continue to treat guardian ad litem
fees as taxable costs against a losing party.
The government alternatively argues that it
has sovereign immunity from guardian ad li-
tem fees, even if they are taxable costs for pri-
vate parties. The United States has immunity
from judgments of costs and expenses absent
its unequivocal statutory consent. FED. R. CIV.
P. 54(d)(1); United States v. Worley, 281 U.S.
339, 344 (1930). The United States has con-
sented that “a judgment for costs, as enumer-
ated in section 1920 . . . may be awarded to
the prevailing party in any civil action brought
. . . against the United States.” 28 U.S.C.
§ 2412(a)(1). The government contends that
§ 2412(a)(1) does not waive immunity from
guardian ad litem fees, because the fees are
not “enumerated” in § 1920.
Again, however, this argument contradicts
our caselaw. We have explained that our cas-
es, both before and after Crawford Fitting,
treat guardian ad litem fees as taxable costs
under Rule 54(d)(1) and, hence, under § 1920.
Furthermore, Dickerson and Lebron, also
FTCA actions, implicitly rejected the govern-
ment’s claim of sovereign immunity by ap-
proving in principle the decision to tax guard-
ian ad litem fees against the government and
remanding solely for calculation of the fees.
Dickerson, 280 F.3d at 478; Lebron, 279 F.3d
2(...continued)
reasonable cost for the guardian’s work.
4