Gaddis, et al v. USA

United States Court of Appeals
Fifth Circuit
F I L E D
July 10, 2003
Charles R. Fulbruge III
Clerk
In the
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
_________________________

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Before HIGGINBOTHAM, SMITH, and
CLEMENT, Circuit Judges.
PER CURIAM:*
The United States appeals a judgment or-
dering it to pay guardian ad litem fees as a tax-
able cost. Based on our precedents, we affirm.
Carlton and Latanza Gaddis were stopped
at a street intersection when a postal employee
drove his government vehicle into theirs. La-
tanza, 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 government appeals a discrete legal is-
sue. It does not challenge the finding of liabil-
ity, the damages, or the calculation of guardian
ad litem fees, which we would review for
abuse of discretion. Dickerson v. United
States, 280 F.3d 470, 478 (5th Cir. 2002). Ra-
ther, it argues that guardian ad litem fees are
not taxable costs at all or at least not against
the United States. We review this question of
law de novo. Roe v. Tex. Dep’t of Protective
& Regulatory Servs., 299 F.3d 395, 400 (5th
Cir. 2002).
The government contends, in four steps,
that no rule or statute authorizes a court to tax
guardian ad litem fees as costs against a losing
party. Rule 54(d)(1) states that “costs other
than attorneys’ fees shall be allowed as of
course to the prevailing party unless the court
otherwise directs[.]” FED. R. CIV. P. 54(d)(1).
Next, the Supreme Court has held that “[28
U.S.C.] § 1920 defines the term ‘costs’ as
used in rule 54(d).” Crawford Fitting Co. v.
J.T. Gibbons, Inc., 482 U.S. 437, 441 (1987).
Sect ion 1920, in turn, lists several items but
does not include guardian ad litem fees. Thus,
the government concludes, the court may not
tax the fees as costs against the losing party.
This sleek reasoning flatly contradicts our
caselaw. In duPont v. S. Nat’l Bank, 771 F.2d
874, 882 (5th Cir. 1985), we held that “[a]s an
officer of the court, the expenses of a guardian
ad litem are properly taxable as costs pursuant
to FED. R. CIV. P. 54(d).” DuPont preceded
Crawford Fitting, and the government argues
that Crawford Fitting implicitly overruled du-
Pont. In three recent cases, however, we cited
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
478; Lebron v. United States, 279 F.3d 321,
332-33 (5th Cir. 2002); Gibbs v. Gibbs, 210
F.3d 491, 506 (5th Cir. 2000).2
* Pursuant to 5TH CIR. R. 47.5, the court has
determined that this opinion should not be pub-
lished and is not precedent except under the limited
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,
feared that an unexpected conflict of interest with
Courtlin might occur during the litigation.
2 The United States concedes that, if guardian
ad litem fees are taxable costs, $46,299 is a
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The government relegates these cases to a
footnote and asks us to disregard them be-
cause they do not cite Crawford Fitting. Yet,
we must follow the decisions of our panels.
Roark v. Humana, Inc., 307 F.3d 298, 313
(5th Cir. 2002), petition for cert. filed (June
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
at 332-33. Thus, we must adhere to our
position that § 2412(a)(1) waives sovereign
immunity against the taxed cost of guardian ad
litem fees.
AFFIRMED.
2(...continued)
reasonable cost for the guardian’s work.

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