Gaddis, et al v. USA

United States Court of Appeals
Fifth Circuit
F I L E D
August 12, 2004
Charles R. Fulbruge III
Clerk
UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 02-41655
CARLTON GADDIS and 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
Before KING, Chief Judge, 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 (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

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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
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, No. 02-41655, 2003 WL
21635308, at *1 & n.1 (5th Cir. July 10, 2003) (unpublished), gave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

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2 Rule 17(c), Infants or Incompetent Persons, provides:
Whenever an infant or incompetent person has a
representative, such as a general guardian, committee,
conservator, or other like fiduciary, the representative
may sue or defend on behalf of the infant or incompetent
person. An infant or incompetent person who does not
have a duly appointed representative may sue by a next
friend or by a guardian ad litem. The court shall
appoint a guardian ad litem for an infant or incompetent
person not otherwise represented in an action or shall
make such other order as it deems proper for the
protection of the infant or incompetent person.
Fed. R. Civ. P. 17(c).
3
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 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

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3 Rule 54(d), Costs; Attorneys’ Fees, provides in part:
(1) Costs Other than Attorneys’ Fees. Except when
express provision therefor is made either in a statute of
the United States or in these rules, costs other than
attorneys’ fees shall be allowed as of course to the
prevailing party unless the court otherwise directs; but
costs against the United States, its officers, and
agencies shall be imposed only to the extent permitted by
law. Such costs may be taxed by the clerk on one day’s
notice. On motion served within 5 days thereafter, the
action of the clerk may be reviewed by the court.
Fed. R. Civ. P. 54(d)(1).
4 Section 2412(a)(1), under Costs and fees, provides:
Except as otherwise specifically provided by statute, a
judgment for costs, as enumerated in section 1920 of this
title, but not including the fees and expenses of
attorneys, may be awarded to the prevailing party in any
civil action brought by or against the United States or
any agency or any official of the United States acting in
his or her official capacity in any court having
jurisdiction of such action. A judgment for costs when
taxed against the United States shall, in an amount
established by statute, court rule, or order, be limited
to reimbursing in whole or in part the prevailing party
for the costs incurred by such party in the litigation.
28 U.S.C.A. § 2412(a)(1) (West 2004). The government further
contends that because the Federal Tort Claims Act (“FTCA”),
28 U.S.C. § 1346(b), §§ 2671-2680, does not include a provision
4
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

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regarding costs, § 2412(a)(1) is the applicable provision governing
costs to be taxed against the nonprevailing government in an FTCA
case.
5 Section 1920, Taxation of costs, provides:
A judge or clerk of any court of the United States may
tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees of the court reporter for all or any
part of the stenographic transcript
necessarily obtained for use in the case;
(3) Fees and disbursements for printing and
witnesses;
(4) Fees for exemplification and copies of
papers necessarily obtained for use in the
case;
(5) Docket fees under section 1923 of this
title;
(6) Compensation of court appointed experts,
compensation of interpreters, and salaries,
fees, expenses, and costs of special
interpretation services under section 1828 of
this title.
A bill of costs shall be filed in the case and, upon
allowance, included in the judgment or decree.
28 U.S.C.A. § 1920 (West 2004).
5
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 his legal work
as an attorney on behalf of Courtlin, not for services provided as
Courtlin’s guardian ad litem.

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6 Dickerson v. United States, 280 F.3d 470 (5th Cir. 2002);
Lebron v. United States, 279 F.3d 321 (5th Cir. 2002); and Gibbs v.
Gibbs, 210 F.3d 491 (5th Cir. 2000), all relied on and affirmed
duPont v. Southern National Bank, 771 F.2d 874 (5th Cir. 1985), a
case decided before Crawford Fitting Co. v. J.T. Gibbons, Inc.,
482 U.S. 437 (1987), where this Court held that the expenses of a
guardian ad litem appointed by the court were properly taxable as
costs pursuant to Rule 54(d). duPont, 771 F.2d at 882. That is,
such costs were allowed where the guardian ad litem was serving in
his role as an officer of the court versus serving any attorney ad
litem function. Id.
6
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

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7
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

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7 Section 1821, Per diem and mileage generally; subsistence,
provides in part:
(a)(1) Except as otherwise provided by law, a witness in
attendance at any court of the United States, or before
a United States Magistrate Judge, or before any person
authorized to take his deposition pursuant to any rule or
order of a court of the United States, shall be paid the
fees and allowances provided by this section.
(2) As used in this section, the term “court of the
United States” includes, in addition to the courts listed
in section 451 of this title, any court created by Act of
Congress in a territory which is invested with any
jurisdiction of a district court of the United States.
(b) A witness shall be paid an attendance fee of $40 per
day for each day’s attendance. A witness shall also be
paid the attendance fee for the time necessarily occupied
8
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 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

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in going to and returning from the place of attendance at
the beginning and end of such attendance or at any time
during such attendance.
28 U.S.C.A. § 1821(a)-(b) (West 2004). The subsection (b) in
effect at the time of Crawford Fitting provided for a $30 per diem
cap; it was increased to $40 by amendment in 1990. Id. note.
9
awardable, and § 1920 allows a court to tax such fees as costs only
within those limits. 482 U.S. at 441-42. 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. 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. 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

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10
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 Rule 54(d). It is
phrased permissively because Rule 54(d) generally grants
a federal court discretion to refuse to tax costs in
favor of the prevailing party. One of the items
enumerated in § 1920 is the witness fee, set by § 1821(b)
at $30 per day.
We cannot accept an interpretation of Rule 54(d)
that would render any of these specific statutory
provisions entirely without meaning. Repeals by
implication are not favored, and petitioners proffer the
ultimate in implication, for Rule 54(d) and §§ 1920 and
1821 are not even inconsistent. We think that it is
clear that in §§ 1920 and 1821, Congress comprehensively
addressed the taxation of fees for litigants’ witnesses.
This conclusion is all the more compelling when we
consider that § 1920(6) allows the taxation, as a cost,
of the compensation of court-appointed expert witnesses.
There is no provision that sets a limit on the
compensation for court-appointed expert witnesses in the
way that § 1821(b) sets a limit for litigants’ witnesses.
It is therefore clear that when Congress meant to set a
limit on fees, it knew how to do so. We think that the
inescapable effect of these sections in combination is
that a federal court may tax expert witness fees in
excess of the $30-per-day limit set out in § 1821(b) only
when the witness is court-appointed. The discretion
granted by Rule 54(d) is not a power to evade this
specific congressional command. Rather, it is solely a
power to decline to tax, as costs, the items enumerated
in § 1920.
Id. at 441-42. We note that neither Crawford Fitting, the opinions
of the two lower courts which were appealed in that case, nor any
of the briefs submitted makes any specific mention of the propriety
of taxing guardian ad litem fees as costs pursuant to Rule 54(d) or

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11
otherwise.
The Supreme Court restated its holding from Crawford Fitting
in West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83,
86 (1991), superceded by statute as stated in Landgraf v. USI Film
Products, 511 U.S. 244, 251 (1994): “[W]e held that [§§ 1920 and
1821] define the full extent of a federal court’s power to shift
litigation costs absent express statutory authority to go further.”
The Court explained: “Crawford Fitting said that we would not
lightly find an implied repeal of § 1821 or of § 1920, which it
held to be an express limitation upon the types of costs which,
absent other authority, may be shifted by federal courts.” Casey,
499 U.S. at 87.
The precise issue in Casey was whether fees for services
rendered by experts in civil rights litigation may be shifted to
the nonprevailing party pursuant to § 1988, which permits the award
of “a reasonable attorney’s fee as part of the costs.” Id. at 97-
102; 42 U.S.C.A. § 1988(b) (West 2004). The Court ultimately held:
Ҥ 1988 conveys no authority to shift expert fees. When experts
appear at trial, they are of course eligible for the fee provided
by § 1920 and § 1821.” Casey, 499 U.S. at 102. Again, neither
Casey, the opinion below, nor any of the briefs submitted makes any
specific mention of the propriety of taxing guardian ad litem fees
as costs pursuant to Rule 54(d) or otherwise. Moreover, Congress
disagreed with the Court shortly after it provided its

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8 See United States ex rel. Wallace v. Flintco Inc., 143 F.3d
955, 972 (5th Cir. 1998) (applying Crawford Fitting and setting
aside cross-awards of expert witness fees in excess of those
provided for by § 1821); Pedraza v. Jones, 71 F.3d 194, 196 n.3
(5th Cir. 1995) (noting how cases that allowed expert witness fees
in excess of the amount specified by § 1821 were overruled by
Crawford Fitting); Coats v. Penrod Drilling Corp., 5 F.3d 877, 891
(5th Cir. 1993) (citing Crawford Fitting to affirm the district
court’s decision not to award expert and witness fees).
12
interpretation of § 1988 as to attorney’s fees in Casey and in 1991
amended § 1988 to explicitly provide courts the discretion to
“include expert fees as part of the attorney’s fee.” 42 U.S.C.A.
§ 1988(c) (West 2004). The Court itself conceded that § 113 of the
1991 Civil Rights Act, which added subsection (c) to § 1988, was
obviously drafted with Casey’s erroneous result in mind. Landgraf,
511 U.S. at 251.
This Court has certainly followed the specific holding of the
Supreme Court in Crawford Fitting, as restated in Casey, as to the
monetary cap on litigants’ witness fees explicitly set by Congress
in § 1821(b), which cannot be circumvented by federal courts under
the sole authority of Rule 54(d).8 In fact, this Court in Coats v.
Penrod Drilling Corp., 5 F.3d 877 (5th Cir. 1993), also stated:
“Rule 54(d) of the Federal Rules of Civil Procedure provides for an
award of costs ‘to the prevailing party unless the court otherwise
directs.’ 28 U.S.C. § 1920 defines recoverable costs, and a
district court may decline to award the costs listed in the statute
but may not award costs omitted from the list.” Id. at 891

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13
(footnote and citation omitted). However, in Coats, as in Crawford
Fitting and Casey, again the taxation of guardian ad litem fees
pursuant to Rule 54(d) or otherwise was not at issue. Rather, we
were considering the propriety of the costs of obtaining
transcripts for several depositions necessarily obtained for use at
trial, travel expenses, costs of “blow-ups,” video technician fees,
party witness fees, party expert fees, and costs of photocopies
necessarily obtained for use in the case. Coats, 5 F.3d at 891-92.
Here, we acknowledge the government’s argument as it is
inferred from the language of Crawford Fitting quoted above. That
is, because § 1920 is silent as to guardian ad litem fees, it does
not include or define them as costs. Therefore, such guardian ad
litem fees are not taxable as costs against a nonprevailing party
under Rule 54(d), particularly the government under § 2412(a),
which expressly cross-references § 1920.
However, we easily reject the government’s argument: first,
because Federal Rule Civil Procedure 17(c) constitutes the
alternative express statutory authorization as required by Crawford
Fitting to provide district courts with the inherent power and
discretion to tax guardian ad litem fees as costs against the
nonprevailing party, including the government in an FTCA case;
second, because even if Rule 17(c) did not constitute the
alternative express statutory authority as required by Crawford
Fitting, we reasonably interpret the meaning of the phrase “court

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9 The Supreme Court has briefly mentioned guardians ad
litem in the context of interpreting one federal statute, solely by
analogy, in Rowland v. California Men’s Colony, Unit II Men’s
Advisory Council, 506 U.S. 194, 211-12 (1993), a case that
considered whether an agency or organization could proceed as a
civil party in forma pauperis, where the Court held that only
natural persons, not artificial entities, could proceed in forma
pauperis as civil litigants per 28 U.S.C. § 1915. The Court
recited in a footnote:
On occasion, when a party is a minor or incompetent, or
fails to cooperate with appointed counsel, or is for some
other reason unable to file a timely affidavit, we will
accept an affidavit from a guardian ad litem or an
attorney. By accepting such an affidavit, we bend the
requirement that the affiant state that “he” is indigent
and that “he” believes “he” is entitled to relief. In
such a case, however, it is clear that the party himself
is a “person” within the meaning of § 1915. The only
question is whether Congress intended to deny § 1915
14
appointed experts” in § 1920(6) to encompass guardians ad litem
such that district courts can tax their compensation as costs per
§ 1920, including against the government in an FTCA case; and
finally, because even in light of Crawford Fitting, this Court’s
precedent dictates the propriety of district courts taxing guardian
ad litem fees as costs, including against the government in an FTCA
case.
Rule 17(c) grants district courts the inherent authority to tax
guardian ad litem fees as costs.
We start with Federal Rule of Civil Procedure 17(c), which is
the source of the district court’s authority to appoint Mr. Bean as
guardian ad litem for the minor Courtlin Gaddis in this FTCA case.
We note that the Supreme Court has never construed, interpreted, or
applied Rule 17(c) in any opinion.9 The only historical note in

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benefits to such a person who for some reason peculiar to
him is disabled from filing an affidavit. It is quite a
different question whether Congress intended to extend
§ 1915 to entities that, by their nature, could never
meet the statute’s requirements.
Id. at 205 n.6. This language in no way addresses the appropriate
circumstances for a court to appoint guardians ad litem per Rule
17(c) nor how such guardians ad litem are to be paid.
10 Equity Rule 70, Suits by or Against Incompetents, as it
appeared in the eighth edition of the New Federal Equity Rules,
provided:
Guardians ad litem to defend a suit may be appointed by
the court, or by any judge thereof, for infants or other
persons who are under guardianship, or otherwise
incapable of suing for themselves. All infants and other
persons so incapable may sue by their guardians, if any,
or by their prochein ami; subject, however, to such
orders as the court or judge may direct for the
protection of infants and other persons.
Fed. Equity R. 70 (8th ed. 1933).
15
the published rules indicates that Rule 17(c) “is substantially
former Equity Rule 70 (Suits by or Against Incompetents) with
slight additions.”10 Fed. R. Civ. P. 17 advisory committee’s note.
It is clear in this Circuit that Rule 17(c) authorizes and
mandates that district courts appoint a guardian ad litem in the
situation where the interests of the minor’s general
representatives, the Gaddis parents here, may conflict with the
interests of the person, their minor child Courtlin here, who might
otherwise be represented by such general representatives. Chrissy
F. ex rel. Medley v. Miss. Dep’t of Pub. Welfare, 883 F.2d 25, 27
(5th Cir. 1989); Adelman ex rel. Adelman v. Graves, 747 F.2d 986,

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16
988 (5th Cir. 1984) (“[T]he courts have consistently recognized
that they have inherent power to appoint a guardian ad litem [or
next friend] when it appears that the minor’s [or incompetent
person’s] general representative has interests which may conflict
with those of the person he is supposed to represent.”(second and
third alteration in original)(citation omitted). Judges may not
“ignore or overlook such a fundamental requirement for the
protection of infants [or incompetent persons].” Adelman, 747 F.2d
at 989 (alteration in original) (citing Roberts v. Ohio Cas. Ins.
Co., 256 F.2d 35, 39 (5th Cir. 1958)). The need to protect the
minor’s or incompetent person’s rights and interests in federal
court proceedings is extremely vital; this is why “[i]t is within
the district court’s discretion to determine [the minor’s] need for
[guardian ad litem] representation, and who may best fill that
need.” Adelman, 747 F.2d at 989. This is also why, “as a matter
of proper procedure, the court should usually appoint a guardian ad
litem.” Id. (citing Roberts, 256 F.2d at 39).
This power to appoint guardians ad litem pursuant to Rule
17(c) is important not only to ensure that the minor’s rights and
interests are fully protected in cases where the minor is otherwise
represented and there may be conflicts of interest, but also to
ensure that the minor has proper access to the federal judicial
system at all. Chrissy F., 883 F.2d at 27 (noting that when making
this Rule 17(c) guardian ad litem appointment determination, “the

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17
district court should consider that access to the courts by
aggrieved persons should not be unduly limited”). Such fair access
to the judicial system by minors and incompetent persons is
enhanced if the district court exercises not only the power to
appoint guardians ad litem, but also, as Rule 17(c) expressly
directs, to “make such other order as it deems proper for the
protection of the infant or incompetent person.” Fed. R. Civ. P.
17(c). This additional power is necessarily required so the
district court can effectuate its appointment of a competent,
independent guardian ad litem.
It is precisely due to such legitimate and practical reasons
that district courts must also have the inherent authority and
discretion to tax guardian ad litem fees as costs against
nonprevailing parties. See Panitch v. State of Wisconsin, 451 F.
Supp. 132, 136 (E.D. Wis. 1978) (“Although Rule 17(c) is silent on
the subject, we believe that an award for the reasonable value of
services provided by the guardian ad litem may be taxed as costs
against all of the defendants, jointly and severally.”). The
Panitch court ordered the nonprevailing defendants to pay the minor
plaintiff’s guardian ad litem fees as costs under Rule 17(c) “as a
necessary consequence of the court’s equitable responsibility to
protect the interests of minor litigants who cannot protect
themselves.” Id. (citation omitted). Although we acknowledge
Rule 17(c) does not specifically state that district courts may tax

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11 The FTCA expressly states that: “The United States shall
be liable, respecting the provisions of this title relating to tort
claims, in the same manner and to the same extent as a private
individual under like circumstances, but shall not be liable for
interest prior to judgment or for punitive damages.” 28 U.S.C. §
2674 (emphasis added); see also id. § 1346(b)(1) (describing
exclusive jurisdiction of district courts for civil actions brought
against the United States as defendant “for money damages . . . for
injury or loss of property, or personal injury or death caused by
the negligent or wrongful act or omission of any employee of the
Government while acting within the scope of his office or
employment, under circumstances where the United States, if a
18
guardian ad litem fees as costs, we find the Panitch court’s
reasoning persuasive as to the district court’s inherent authority
to tax guardian ad litem fees as costs under the express mandate of
Rule 17(c).
Thus, a district court may tax guardian ad litem fees as costs
per Rule 17(c) because we find Rule 17(c) to constitute the
alternative express statutory authorization as required by Crawford
Fitting. See, e.g., ICG Communications, Inc. v. Allegiance
Telecom, 211 F.R.D. 610, 613 (N.D. Cal. 2002) (noting each Federal
Rule of Civil Procedure has the imprimatur of Congress such that
Rule 26 constituted a law for purposes of 27 U.S.C. § 222).
Likewise, the inherent powers and responsibility under Rule 17(c)
to make such orders as the court deems proper also constitute the
alternative express statutory authorization to tax guardian
ad litem fees as costs to meet the requirements of § 2412(a)(1) and
defeat any associated claim of sovereign immunity by the
nonprevailing government in an FTCA case.11 In the absence of any

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private person, would be liable to the claimant . . . .”).
The Supreme Court discussed the broad nature and extent of the
government’s waiver of sovereign immunity under the FTCA in United
States v. Yellow Cab Co., 340 U.S. 543 (1951). There, the Court
stated that “the [FTCA] waives the Government’s immunity from suit
in sweeping language” and “unquestionably.” Id. at 547 (emphasis
added). Moreover, the Court noted that because the Federal Rules
of Civil Procedure apply to “all civil actions,” the former
language of the FTCA which referred specifically to the application
of the Rules was omitted as unnecessary. Id. at 553 n.9. Thus,
there is no question that FTCA actions are properly subject to the
Rules. See Simon v. United States, 891 F.2d 1154, 1156 (5th Cir.
1990); United States v. Acord, 209 F.2d 709, 711 (10th Cir. 1954).
19
Supreme Court holding or instruction otherwise, we therefore
exercise our authority as an en banc Court to hold that under Rule
17(c), the district courts have inherent authority and discretion
to determine:
(a) Whether a guardian ad litem needs to be appointed
to protect the interests of the minor or
incompetent person, and if so, who will be
appointed to best serve in that capacity;
(b) Whether the guardian ad litem will be compensated
for his services; and if so, the basis upon which
the value of such services shall be determined, so
long as the guardian ad litem is acting in his
guardian ad litem capacity and not in any attorney
ad litem capacity; and
(c) Whether the compensation payable to the guardian ad
litem will be treated (1) as a court cost to be
taxable against the nonprevailing party or (2) as
an expense to be payable out of any funds recovered
by or payable to the minor or incompetent person on
whose behalf the guardian ad litem was appointed.
Section 1920(6) grants district courts the statutory authority to
tax guardian ad litem fees as costs against the nonprevailing
government in an FTCA case.

-- 19 of 51 --

20
Alternatively, were Rule 17(c) not construed by the Supreme
Court to constitute the alternative express statutory authority as
required by Crawford Fitting to provide district courts with the
inherent power and discretion to tax guardian ad litem fees as
costs, this Court concludes that subsection (6) of § 1920 providing
for “[c]ompensation of court appointed experts” can reasonably be
read to include fees for services rendered by a guardian ad litem
appointed by a court pursuant to Rule 17(c).
We have clearly stated that Crawford Fitting “limits judicial
discretion with regard to the kind of expenses that may be
recovered as costs; it does not, however, prevent courts from
interpreting the meaning of the phrases used in § 1920.” West Wind
Africa Line, Ltd. v. Corpus Christi Marine Servs. Co., 834 F.2d
1232, 1238 (5th Cir. 1988); see also Cengr v. Fusibond Piping Sys.,
Inc., 135 F.3d 445, 454 (7th Cir. 1998) (“Under Crawford [Fitting],
courts are allowed to interpret the meaning of the phrases used in
§ 1920.”); Alflex Corp. v. Underwriters Labs., Inc., 914 F.2d 175,
177 (9th Cir. 1990) (finding the court’s interpretation of
§ 1920(1) “supported by recent decisions from the Fifth and the
Seventh Circuits that have held that courts are free to interpret
what constitutes taxable costs after Crawford [Fitting]”); SK Hand
Tool Corp. v. Dresser Indus., Inc., 852 F.2d 936, 944 (7th Cir.
1988) (agreeing with the Fifth Circuit and describing the court’s
authority to interpret the meaning of the phrases in § 1920,

-- 20 of 51 --

21
despite Crawford Fitting).
In West Wind, we determined that even though § 1920 does not
explicitly enumerate depositions in its list of costs, courts have
properly interpreted § 1920(2) providing for “fees of the court
reporter” and § 1920(4) providing for “fees for exemplification and
copies of papers necessarily obtained for use in the case” as
statutorily authorizing the taxation of the costs of original
deposition transcripts and copies. 834 F.2d at 1238; United States
v. Kolesar, 313 F.2d 835, 838-39 (5th Cir. 1963) (holding the cost
of a deposition copy taxable against the government in an FTCA case
as a matter of statutory construction under § 1920(2)); see also
Cengr, 135 F.3d at 454 (finding deposition transcript expenses to
be taxable costs as a matter of statutory construction under
§ 1920(2) as stenographic transcripts, and photocopying expenses
authorized under § 1920(4) as exemplification fees); Aflex Corp.,
914 F.2d at 177 (“The cost of deposition copies is ‘encompassed’ by
section 1920(2), and is therefore properly taxed under the Crawford
[Fitting] holding[].”); Maxwell v. Hapag-Lloyd Aktiengesellschaft,
Hamburg, 862 F.2d 767, 770 (9th Cir. 1988) (interpreting § 1920 and
finding the costs of photographic materials used at trial
encompassed by § 1920(4)’s allowance for “[f]ees for
exemplification and copies of papers necessarily obtained for use
in the case”); S.K. Hand, 852 F.2d at 944 (finding deposition
transcript expenses to be costs encompassed by § 1920(2)); Federal

-- 21 of 51 --

12 We note that at least one district court, after Crawford
Fitting was decided, has found the fees and expenses of a guardian
ad litem taxable as costs specifically under § 1920 together with
Rule 54(d), although the court declined to name under which
provision of § 1920 guardian ad litem fees were included. Allstate
Ins. Co., Inc. v. Jones, 763 F. Supp. 1101, 1102 (M.D. Ala. 1991).
22
Procedure, Lawyer’s Edition § 26:54 (2003) (“Even though
28 U.S.C.A. § 1920 does not specifically mention depositions, the
Supreme Court’s Crawford Fitting decision does not preclude courts
from finding that deposition transcripts are authorized by § 1920,
as the Supreme Court did not prevent courts from interpreting the
meaning of the phrases used in § 1920.”) (footnote omitted). Also,
section 1920(1)’s phrase “[f]ees of the clerk and marshal” has been
interpreted by the Ninth Circuit to include private process
servers’ fees as taxable costs because the service of summonses and
subpoenas is now done almost exclusively by private parties
employed for that purpose, not the U.S. Marshal, even though there
is no express provision authorizing the payment of private process
servers in § 1920. Aflex Corp., 914 F.2d at 178.
Similarly, even though § 1920 does not specifically mention
guardian ad litem fees in its list of costs, a guardian ad litem
appointed by a court pursuant to Rule 17(c) can be reasonably
interpreted as a court appointed expert under § 1920(6).12 The
guardian ad litem is an officer of the court with “full
responsibility to assist the court to secure a just, speedy, and
inexpensive determination of the action.” Noe v. True, 507 F.2d 9,

-- 22 of 51 --

13 See H.R. Rep. 95-1687, at 12 (1978), reprinted in 1978
U.S.C.C.A.N. 4652, 4664. Prior to the 1978 amendment of 28 U.S.C.
§ 1920, which added the entirety of subsection (6), there was no
specific subsection that dealt with either interpreters or court
appointed experts. The 1978 amendment was passed as part of the
23
12 (6th Cir. 1974) (internal quotations and citation omitted). The
guardian ad litem’s special duty is to submit to the court for its
consideration and decision every question involving the statutory
and constitutional rights of the minor that may be affected by the
action. See Chrissy F., 883 F.2d at 27 (noting how the appointment
of guardians ad litem alleviate the risk of the minor party
becoming “a pawn to be manipulated on a chess board larger than his
own case”) (citation omitted). Guardians ad litem thus perform
independent functions that are integral and essential to the
judicial process. See Cok v. Cosentino, 876 F.2d 1, 3 (1st Cir.
1989) (finding guardians ad litem are entitled to quasi-judicial
immunity because of same).
Therefore, guardians ad litem appointed by the court
reasonably serve as experts in the sense that they liaise with the
court and are charged with the important duty of providing their
insight as to how the judicial process is or is not comporting with
the best interests of the minor or incompetent person involved.
While there is some indication in the legislative history that
court appointed expert as used in § 1920(6) refers to a court
appointed expert as appointed pursuant to Federal Rule of Evidence
706,13 the plain statutory language of § 1920(6) does not so

-- 23 of 51 --

Court Interpreters Act, so the language about Federal Rule of
Evidence 706 governing what a “court appointed expert” is, while
located in the legislative history, seems to be an afterthought,
especially considering that the crux of the House report is
directed toward the need for and process of appointing and
budgeting for court language interpreters, not other court
appointed experts. The report also indicates that the original
impetus for the Court Interpreters Act was the Sixth Circuit’s
decision in United States ex rel. Negron v. New York, 434 F.2d 386,
390-91 (6th Cir. 1970), which held that the Sixth Amendment
requires that non-English-speaking criminal defendants be informed
of their right to simultaneous interpretation of proceedings at the
government’s expense. H.R. Rep. 95-1687, at 3 (1978), reprinted in
1978 U.S.C.C.A.N. 4652, 4653-54. There is no such historic basis
given for why costs of court appointed experts should be allowed,
only the abrupt one-sentence reference to Rule 706's application.
14 Even West Virginia University Hospitals, Inc. v. Casey,
499 U.S. 83 (1991), which restated the holding of Crawford Fitting,
seems to condone the practice of courts interpreting the language
of the categories of expenses listed in § 1920. Id. at 87 (noting
how no subsection of § 1920 could be “reasonably read to include
fees for services rendered by an expert employed by a party in a
nontestimonial, advisory capacity”) (emphasis added).
15 We again note the sweeping and unquestionable waiver of
sovereign immunity by the government under the FTCA. Yellow Cab,
24
narrowly limit the interpretation of court appointed expert. This
en banc Court is thus not constrained to so narrowly interpret the
category of court appointed expert. Therefore, we find that the
court appointment of a guardian ad litem pursuant to Rule 17(c)
clearly falls within the reasonable scope of § 1920(6)’s
authorization for courts to tax the costs of “court appointed
experts.”14 This finding also defeats any claim of sovereign
immunity by the government because § 2412(a)(1) expressly provides
that § 1920 costs are taxable against the nonprevailing
government.15

-- 24 of 51 --

340 U.S. at 547. We also note that the Court quoted from the text
of the statutory provision which ultimately became the FTCA:
“Costs shall be allowed in all courts to the successful claimant to
the same extent as if the United States were a private litigant,
except that such costs shall not include attorneys’ fees.” Id. at
547 n.4. Although this language was removed when that provision
was reenacted as the present FTCA in 1948, the Court made clear
that “[w]e rely on the meaning of the language in the original Act
and read the revised language as carrying it out.” Id. Thus, we
properly construe the plain meaning of “court appointed expert” in
§ 1920(6) as an enumerated cost with the government’s broad waiver
of sovereign immunity in mind.
16 Dickerson, 280 F.3d at 478; Lebron, 279 F.3d at 332; Gibbs,
210 F.3d at 506-08.
25
This Circuit’s post-Crawford Fitting precedent provides for the
taxation of guardian ad litem fees as costs against the government
in an FTCA case.
Alternatively, were guardian ad litem fees not construed by
the Supreme Court to be reasonably included in § 1920's list of
taxable costs, this Court concludes that our post-Crawford Fitting
precedent16 dictates the continued propriety of district courts to
tax guardian ad litem fees as costs against nonprevailing parties,
including the government in an FTCA case. While we recognize the
underlying treatment the Supreme Court gave to the interplay
between Rule 54(d) and § 1920 in Crawford Fitting, we are reluctant
to and thus do not apply any such proscription here to the taxation
of guardian ad litem fees as costs against the government in an
FTCA case where the plaintiffs prevailed. We decline to read
Crawford Fitting as restricting us in this case for the following
reasons:

-- 25 of 51 --

17 Hull v. United States, 53 F.3d 1125, 1128-29 (10th Cir.
1995) (upholding taxation of guardian ad litem fees as costs
against nonprevailing government in an FTCA case under Rule 54(d))
(post-Crawford Fitting); Kollsman v. Cohen, 996 F.2d 702, 706 (4th
Cir. 1993) (remanding for the district court to determine which
costs were attributable to role of guardian ad litem versus
attorney ad litem and to charge them against nonprevailing party
pursuant to court’s authority under Rule 54(d)) (post-Crawford
Fitting); Schneider v. Lockheed Aircraft Corp., 658 F.2d 835, 854
(D.C. Cir. 1981) (holding the district court properly allowed
guardian ad litem fees to be taxed as costs) (pre-Crawford
Fitting), abrogated on other grounds, Duggan v. Keto, 554 A.2d
1126, 1139-40 (D.C. 1989); Franz v. Buder, 38 F.2d 605, 606 (8th
Cir. 1930) (allowing taxation of guardian ad litem fees as costs
pursuant to Federal Equity Rule 70) (pre-Crawford Fitting).
18 Calva-Cerqueira v. United States, 281 F. Supp. 2d 279, 301
(D.D.C. 2003) (allowing taxation of guardian ad litem expenses as
costs against the nonprevailing government in an FTCA action
pursuant to Rule 54(d)) (post-Crawford Fitting); Jones, 763 F.
Supp. at 1102 (allowing prevailing party to recover fees and
expenses of guardian ad litem as taxable costs pursuant to § 1920
and Rule 54(d)) (post-Crawford Fitting); United States v. 1,197.29
Acres of Land, More or Less, Situate in Butler County, State of
Kan., 759 F. Supp. 728, 735 (D. Kan. 1991) (“The court appointed
guardian ad litem is entitled to a reasonable fee for his services
in this action, to be set by the court and taxed as costs.”) (post-
Crawford Fitting); United States v. Certain Lots in City of
Virginia Beach, Va. Known as Lots Eighteen (18) and Nineteen (19),
in Block Three (3), 657 F. Supp. 1062, 1066 (E.D. Va. 1987) (taxing
26
(a) No court in this Circuit ever has read Crawford
Fitting to disallow the taxation of guardian ad
litem fees against nonprevailing parties, including
the government in FTCA cases;
(b) In addition to the precedents in this Circuit, each
other circuit that has spoken on whether guardian
ad litem fees can be taxed as court costs, either
before or after Crawford Fitting – including the
Fourth, Eighth, Tenth, and D.C. Circuits – has
agreed that they can17;
(c) Several district courts, including those in the
Seventh and Eleventh Circuits, have also agreed
that guardian ad litem fees can be taxed as costs18;

-- 26 of 51 --

guardian ad litem fees as court costs against nonprevailing United
States) (pre-Crawford Fitting); Panitch v. State of Wisconsin, 451
F. Supp. 132, 136 (E.D. Wis. 1978) (taxing guardian ad litem fees
as costs against all nonprevailing parties pursuant to Rule 17(c),
though the Rule is “silent on the subject”) (pre-Crawford Fitting).
19 See, e.g., Ala. R. Civ. P. 17(d) (West 2003); 755 Ill. Comp.
Stat. Ann. 5/27-4 (West 2004); Mich. Comp. Laws Ann. § 600.2045
(West 2004); N.C. Gen. Stat. § 1A-1(b)(2) (2004) (codifying N.C. R.
Civ. P. 17); Tex. R. Civ. P. 173 (Vernon 2003); 6A Charles Alan
Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and
Procedure § 1570, at 506 (2d ed. 1990)(noting how the law of
several states provides for the taxation of guardian ad litem fees
as costs).
27
(d) Neither the term “guardian ad litem” nor the phrase
“guardian ad litem fees” appears anywhere in the
Supreme Court’s decision in Crawford Fitting, nor
in any brief submitted to the Supreme Court in
Crawford Fitting, nor in the opinions of either of
the two cases from the Fifth Circuit considered by
the Supreme Court in Crawford Fitting;
(e) We have found no Supreme Court opinion that
addresses in any way the propriety of charging
guardian ad litem fees as costs to be paid by the
nonprevailing party in any proceeding in federal
court;
(f) Finally, the practice of assessing guardian ad
litem fees as costs against a nonprevailing party
is clearly recognized by state courts applying
their respective state statutes and rules governing
the appointment and payment of guardians ad litem.19
For these reasons we conclude that the Supreme Court did not have
the subject of guardian ad litem fees before it in rendering its
opinion in Crawford Fitting; and because of the wide and deep
precedents in this Circuit and other federal courts, we are not
obligated to extend the language of Crawford Fitting to overrule a

-- 27 of 51 --

20 This Court notes that district courts sitting in diversity
can look to the applicable state statutes governing the appointment
and payment of guardians ad litem, instead of Rules 17(c) and
54(d), and § 1920. See, e.g., Kollsman, 996 F.2d at 705 n.2
(correcting district court’s application of the Virginia guardian
ad litem statutes and applying Rules 17(c) and 54(d) instead where
district court had erred in finding diversity jurisdiction);
duPont, 771 F.2d at 882 n.6 (noting that applicable Texas law
regarding taxation of guardian ad litem fees as costs could apply
in diversity case); Mulholland v. Schneider Serv. Co., Inc.,
661 F.2d 708, 712 (8th Cir. 1981) (applying Missouri statute
regarding costs of defendant guardian ad litem in diversity case).
But see Miron v. APCO Corp., 289 F. Supp. 915, 916 (E.D. Wis. 1968)
(applying Rule 54(d) discretion to not award guardian ad litem fees
in a diversity case instead of the Wisconsin statute that would
have required such award).
28
practice that has been widely accepted as fair and proper in the
absence of express language from the Supreme Court requiring that
change.
Overall, we thus hold that district courts retain the
discretion to award guardian ad litem fees as court costs and
assess them against nonprevailing parties, including the government
in an FTCA case.20
Whether the district court here appropriately assessed the award of
guardian ad litem fees.
District courts have broad discretion in determining the
appropriateness of an award of costs. Dickerson, 280 F.3d at 478
(citing Gibbs, 210 F.3d at 500). We review a district court’s
award or denial of costs, including guardian ad litem fees, for an
abuse of discretion. Dickerson, 280 F.3d at 478 (citations

-- 28 of 51 --

29
omitted). “[W]here the same person acts in the capacities as both
a minor’s guardian ad litem and as his attorney ad litem, only the
person’s expenses in the former role are taxable as costs under
Fed. R. Civ. P. 54(d)." Id. (quoting Gibbs, 210 F.3d at 506).
Here, the district court underwent a thorough expense-by-
expense determination as to which of Mr. Bean’s fees were in the
nature of legal services. The court found that certain of
Mr. Bean’s case law and statutory research and the drafting of his
motion for fees were not properly chargeable and disallowed them as
costs. We conclude the district court did not abuse its broad
discretion to determine the appropriate amount of costs to be
awarded to Mr. Bean.
CONCLUSION
Having carefully reviewed the record of this case and the
parties’ respective briefing and arguments, for the reasons set
forth above, we AFFIRM the decision of the district court to award
the court appointed guardian ad litem his fees as a court cost
chargeable against the nonprevailing government in this FTCA case.
We also AFFIRM the amount of guardian ad litem fees awarded.
AFFIRMED.

-- 29 of 51 --

30
KING, Chief Judge, dissenting:
I respectfully dissent. For the reasons cogently explained in
Parts II.A-B and III of Judge Smith’s dissenting opinion, I would
hold that guardian ad litem fees cannot be taxed as costs of court
under the authority of Rule 54(d) because they are not enumerated
in 28 U.S.C. § 1920. See Crawford Fitting Co. v. J.T. Gibbons,
Inc., 482 U.S. 437, 441-42 (1987). As to whether Rule 17 provides
a separate source of authority, it could well be that the power to
appoint a guardian ad litem carries with it an inherent power to
order payment: out of the award, out of some res before the court,
from the parents, or possibly from another private party before the
court; the bounds of the district court’s authority in such
practical matters are difficult to mark. But, whatever may be true
as regards the liability of a private litigant, Rule 17 does not
(and arguably could not) provide the clear and explicit waiver of
sovereign immunity that would permit an order directed at the
government, which is the issue in today’s case. See, e.g., United
States v. Nordic Village, Inc., 503 U.S. 30, 33-34 (1992); cf. 28
U.S.C. § 2412(a)(1).

-- 30 of 51 --

31
SMITH, dissenting, joined by JOLLY,
EMILIO M. GARZA, BENAVIDES, and
PRADO:
In an act of Orwellian doublethink,21 the
majority concludes that although “Rule 17(c)
does not specifically state” that guardian ad
litem fees may be taxed as costs, it neverthe-
less provides “express statutory authorization”
for that result. Compare Maj. Op. at 18 with
id. at 13, 18.22 Emboldened by that cogent in-
sight, the majority then embarks on a broad
survey of legal fictions, highlighted by an im-
pliedly explicit waiver of sovereign immunity
and the discovery that a statute has binding
force despite its repeal in 1948.
As if sitting in Congress, the majority is
ultimately able to agree on nothing more than
a result: Guardian ad litem fees may be taxed
as costs against the government despite sover-
eign immunity and despite Crawford Fitting
Co. v. J.T. Gibbons, Inc., 482 U.S. 437
(1987). The doctrinal basis for that result is so
illusory, however, that the majority feels com-
pelled to insulate itself in layer upon layer of
“alternative” holdings. As a result, the true
basis for today’s decision remains a mys-
terySSeven to the majority that wrought it.
The unescapable reality is that the federal
rules and statutes fail to provide that ad litem
fees may be taxed as costs, and the only other
authority for that proposition, duPont v. S.
Nat’l Bank, 771 F.2d 874 (5th Cir. 1985), fails
to survive Crawford Fitting. Because the ma-
jority is unable to accept the policy implica-
tions of that result, it boldly infers the exis-
tence of a power that Congress has not yet
seen fit to provide, then brazenly declares that
it is “expressly” and “specifically” provided for
in rules and statutes that are entirely silent on
the subject. Such an opinion can only be the
product of a majority that is more confident in
its result than in its reasoning, so I respectfully
dissent.
I.
In its first and least convincing holding, the
majority accepts the argument that Crawford
Fitting implicitly overrules duPont, so the ma-
jority agrees that it is therefore necessary to
find a rule or statute that expressly authorizes
21 “Doublethink means the power of
holding two contradictory beliefs in one’s mind
simultaneously, and accepting both of them . . . .
The process has to be conscious, or it would not be
carried out with sufficient precision, but it also has
to be unconscious, or it would bring with it a
feeling of falsity and hence of guilt.” G. Orwell,
Nineteen Eighty-Four 176 (1949).
22 This is not the first time an en banc
majority of this court has reached such a
perplexing result. See Kelly v. Lee’s Old
Fashioned Hamburgers, Inc., 908 F.2d 1218,
1222 (5th Cir. 1990) (en banc) (Smith, J.,
dissenting) (“[T]he presence of the word ‘express’
should be enough of a clue that that word, rather
than the word ‘implied,’ is what in fact was meant
in the promulgation of [Rule 54(b)].”).

-- 31 of 51 --

32
the taxation of ad litem fees as costs.23 Faced
with that challenge, the majority holds that the
power to tax costs should be expressly enu-
merated in rule 17(c), so the majority accord-
ingly findsSSnotwithstanding the text of the
ruleSSthat it is expressly enumerated.24
As I will demonstrate, the majority’s rea-
soning is severely flawed. It is no exaggera-
tion to observe that the majority (1) ignores
the plain meaning of some of the most elemen-
tary words in the English language; (2) relies
on a long-since repealed waiver of immunity;
(3) gives t he federal rules an impermissibly
broad mandate; and (4) then inexplicably
refuses to remand for application of its newly-
drafted rules.
A.
The majority finds its “express authoriza-
tion” in two parts of rule 17(c): first, in the
language that provides for the appointment of
a guardian ad litem; and second, in the lan-
guage that allows the court to issue other or-
ders for the protection of the minor. Cf. FED.
R. CIV. P. 17(c). I address those claims in
turn.
1.
It is not surprising that the meaning of the
term “express” has changed little since 1990,
when this court decided Kelly and first begat
the concept of an impliedly-express statement.
Then, as now, the term “express” meant “dir-
ectly and distinctly stated or expressed rather
than implied or left to inference.” WEBSTER’S
THIRD NEW INT’L DICTIONARY 803 (Merriam-
Webster 1986).25 It is, to put it mildly, “the
very opposite of ‘implied.’” Kelly, 908 F.2d at
1222 (Smith, J., dissenting).
Because rule 17(c) makes no mention of ei-
ther the taxation of costs or the payment of ad
litem fees, there is no sense in which it “ex-
pressly” provides that a guardian’s fees may be
taxed as costs. If the power to tax such fees
as costs exists somewhere within rule 17(c), it
can only be as an implicit component of the
district court’s authority to appoint a guardian.
As a result, the majority’s claim that rule 17(c)
contains “express statutory authorization” for
the taxation of ad litem fees as costs is pa-
tently false.26
23 See Crawford Fitting, 482 U.S. at 445
(requiring “explicit statutory . . . authorization” for
the taxation of costs not enumerated in 28 U.S.C.
§ 1920(6)).
24 See Maj. Op. at 18 (stating that “[i]t is
precisely due to such legitimate and practical
reasons that district courts must also have the
inherent authority and discretion to tax guardian ad
litem fees as costs against nonprevailing parties,”
and relying on a decision that describes rule 17(c)
as “silent on the subject”).
25 See also BLACK’S LAW DICTIONARY
601 (7th ed. 1999) (“express, adj. Clearly and
unmistakably communicated; directly stated.”);
MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY
645 (Merriam-Webster 1998) (“1a: directly,
firmly, and explicitly stated. b: EXACT, PRECISE.”)
26 Crawford Fitting, 482 U.S. at 445,
speaks in terms of “explicit” authority. “Explicit”
means “characterized by full clear expression :
being without vagueness or ambiguity : leaving

-- 32 of 51 --

33
This flaw in the majority’s argument be-
comes all the more glaring when rule 17(c) is
compared with rule 53, which governs the ap-
pointment and compensation of masters. See
FED. R. CIV. P. 53. The rules committee
knows how to be explicit when it wishes to be,
as rule 53 makes abundantly plain.
The newly revised rule 53(a)(3) provides
that “[i]n appointing a master, the court must
consider the fairness of imposing the likely
expenses on the parties.” FED. R. CIV. P. 53-
(a)(3) (West 2004).27 Rule 53(h), by its own
title, expressly addresses the “compensation”
of masters. Subsection (h)(1) provides that
“[t]he court must fix the master’s compensa-
tion before or after judgment on the basis and
terms stated in the order of appointment.”
FED. R. CIV. P. 53(h)(1). Subsection (h)(2)
further specifies that the master’s compensa-
tion may be paid by either party or both, or
from a fund or subject matter of the action
within the court’s control. FED. R. CIV. P.
53(h)(2).
Thus, it is fair to say that rule 53’s express
provisions dealing with both the appointment
and the compensation of special masters con-
stitute “explicit” authorization of the kind con-
templated in Crawford Fitting. Rule 17(c), in
contrast, provides only for the appointment of
guardians ad litem. It says nothing whatso-
ever about the means by which an appointed
guardian is to be compensated and, accord-
ingly, does not contain the “explicit statutory
authorization” the majority needs to reach its
result.
Ironically, this point is further illustrated by
the majority’s advocacy of one of its “alterna-
tive” holdings. In arguing that Crawford Fit-
ting is inapposite here, the majority claims that
the federal rules are similar to state laws that
provide for the compensation of guardians ad
litem. See Maj. Op. at 28 & n.19. The critical
difference, however, between federal law and
the state laws relied on by the majority, is that
the latter all specifically and unambiguously
provide that guardian ad litem fees may be
taxed as costs.
For example, the majority cites Alabama
Rule of Civil Procedure 17(d). Much like fed-
eral rule 17, Alabama’s rule 17(c) provides
that a district court “shall appoint a guardian
ad litem (1) for a minor defendant, or (2) for
an incompetent person not otherwise repre-
sented in an action.” ALA. R. CIV. P. 17(c).
Unlike the federal rule, however, Alabama’s
rule also includes subpart (d), which provides:
In all cases in which a guardian ad litem is
required, the court must ascertain a reason-
able fee or compensation to be allowed and
paid to such guardian ad litem for services
nothing implied.” WEBSTER’S THIRD NEW INT’L
DICTIONARY 801 (Merriam-Webster 1986). The
power identified by the district court no more fits
this definition than it does that of the word “ex-
press.”
27 Before its revision, rule 53(a)SSwhich
was titled “Appointment and Compensation”SSpro-
vided that “[t]he compensation to be allowed to a
master shall be fixed by the court, and shall be
charged upon such of the parties . . . as the court
may direct.” FED. R. CIV. P. 53(a) (West 2003).

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34
rendered in such cause, to be taxed as
a part of the costs in such action, and
which is to be paid when collected as
other costs in the action, to such
guardian ad litem.
ALA. R. CIV. P. 17(d) (cited in the Maj. Op. at
28 n.19).
Mississippi’s rules are similar. As with the
federal and Alabama rules, Mississippi has a
rule 17(c) that provides for the appointment of
a guardian ad litem for unrepresented minors.
MISS. R. CIV. P. 17(c). Just as in Alabama, but
unlike the federal rule, the appointment provi-
sion is immediately followed by a section that
addresses the compensation of guardians:
In all cases in which a guardian ad litem is
required, the court must ascertain a reason-
able fee or compensation to be allowed and
paid to such guardian ad litem for his ser-
vice rendered in such cause, to be taxed as
a part of the cost in such action.
MISS. R. CIV. P. 17(d).28
If the similarly worded state rules 17(c) al-
ready “expressly” provided for that result,
these provisions would be wholly extraneous.
The fact is that they are not. No matter how
much the majority thinks the practice in federal
courts should be the same as in these states,
rule 17(c) provides only for the appointment
of guardians ad litem, and there is no com-
mensurate federal rule or statute specifying the
manner in which their fees are to be paid. If
that omission is bad policy, the power to craft
a solution lies solely in the hands of Congress
and the drafters of the federal rules, not simply
in the abusive “exercise [of] our authority as
an en banc Court.” Cf. Maj. Op. at 20.
2.
Having created for the district courts, out
of whole cloth, the “inherent authority” to tax
ad litem fees as costs, the next step in the ma-
jority’s linguistic putsch is to find a way to
place that power into the text of the federal
rules. Cf. Maj. Op. at 17. The majority does
this by seizing on rule 17(c)’s provision that
the district courts shall “make such other order
as it deems proper for the protection of the in-
fant or incompetent person.” Id. According
to the majority, “[t]his additional power is nec-
essarily required so the district court can ef-
fectuate its appointment of a competent,
independent guardian ad litem.” Id.
That argument is premised on a selective
quotation of rule 17(c). The full sentence re-
lied on by the majority provides:
28 See also N.C. R. CIV. P. 17(b)
(providing that the court “may appoint some
discreet person to act as guardian ad litem . . . and
fix and tax his fee as part of the costs”); TENN. R.
CIV. P. 17.03 (“The court may in its discretion
allow the guardian ad litem a reasonable fee for
services, to be taxed as costs.”); TEX. R. CIV. P.
173 (“the court shall appoint a guardian ad litem
for such person and shall allow him a reasonable
fee for his services to be taxed as a part of the
costs.”). Further examples can be found in part III
of this dissent, addressing the majority’s second “alternative” to its main holding.

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35
The court shall appoint a guardian ad litem
for an infant or incompetent person not
otherwise represented in an action or shall
make such other order as it deems proper
for the protection of the infant or incompe-
tent person.
FED. R. CIV. P. 17(c) (emphasis added). Con-
trary to the majority’s understanding, the plain
meaning of this passage is that rule 17(c) af-
fords the district courts a choice between ap-
pointing an ad litem and issuing other orders
for the protection of the minor; it does not
give the court the power to do both.
Far from being a power given in furtherance
of the power to appoint an ad litem, the “other
order” clause is a grant of discretion that
enables the district court to protect the minor
without appointing a guardian. That reading
of rule 17(c) is not only plain on the face of
the text, but is confirmed by our decisions29
and those of other circuits.30 A leading treatise
on federal procedure succinctly explains that
“the court may either appoint a guardian ad
litem or ‘make such other order as it deems
proper for the protection of the infant or
incompetent person.’” 4 JAMES W. MOORE ET
AL., MOORE’S FEDERAL PRACTICE § 17.21-
[3][b] (Matthew Bender 3d ed.) (emphasis
added). Because it is used only as an alterna-
tive to the appointment of a guardian ad litem,
the “other order” clause provides the majority
no cover.
In short, then, the majority purports to rely
on “express statutory authority” for the taxa-
tion of ad litem fees. Instead, it relies only on
an implied power that it creates and then
reads into a provision of the rules that can be
invoked only when an ad litem is not ap-
pointed.
B.
The majority’s first rationale is equally un-
convincing in its discussion of the govern-
ment’s claim to sovereign immunity. Even as-
suming, arguendo, that ad litem fees may be
taxed as costs under some combination of
rules 17(c) and 54(d)(1), as the majority holds,
those costs can not automatically be taxed
against the government as the losing party in
an action brought under the Federal Tort
Claims Act (“FTCA”), 28 U.S.C. § 2671 et
seq. This is because the FTCASSas it is cur-
29 See, e.g., Roberts v. Ohio Cas. Ins. Co.
256 F.2d 35, 39 (5th Cir. 1958) (providing that a
district court should usually appoint an ad litem,
but may instead “after weighing all the
circumstances, issue such order as will protect the
minor in lieu of appointment of a guardian ad litem
. . . and may even decide that such appointment is
unnecessary”); Adelman ex rel. Adelman v.
Graves, 747 F.2d 986, 988-89 (5th Cir. 1984)
(same).
30 See, e.g., Gardner by Gardner v.
Parson, 874 F.2d 131, 140 (3d Cir. 1989) (stating
that “under Rule 17(c), a court may appoint a
guardian, or it may decline to do so if the child’s
interests may be protected in an alternative
manner.”); Genesco, Inc. v. Cone Mills Corp., 604
F.2d 281, 285 (4th Cir. 1979) (Rule 17(c) requires
the court either to appoint a guardian “or take other
equivalent protective action”).

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36
rently draftedSSdoes not waive the govern-
ment’s immunity from the taxation of costs
and attorney’s fees.
Rather, costs and attorneys’ fees may only
be taxed against the government to the extent
that immunity is waived by the Equal Access
to Justice Act (“EAJA”), 28 U.S.C. § 2412.
See Sanchez v. Rowe, 870 F.2d 291, 296 (5th
Cir. 1989). The EAJA provides, in relevant
part:
Except as otherwise specifically provided
by statute, a judgment for costs, as enumer-
ated in section 1920 of this title, but not
including the fees and expenses of attor-
neys, may be awarded to the prevailing par-
ty in any civil action brought by or against
the United States.
§ 2412(a)(1). That language unambiguously
provides that costs may be taxed against the
United States only if they are among those
enumerated in 28 U.S.C. § 1920. Although
§ 1920 lists a number of items of taxable costs,
it says nothing about guardian ad litem fees.31
As a result, even if the majority is correct in
holding that ad litem fees may be taxed as
costs under rule 17(c), sovereign immunity has
not been waived and the costs may not be
taxed against the government. Thus, the dis-
trict court’s order taxing ad litem fees must be
reversed.
To avoid this straightforward resultSSwhich
is, evidently, so unpalatable to the majority
that it will go to extraordinary lengths to avoid
itSSthe majority takes two approaches. In the
body of the opinion, it assesses sovereign
immunity using the correct statute, but holds
that “the inherent powers and responsibility
under rule 17(c) to make such orders as the
court deems proper also constitute the alterna-
tive express statutory authorization to tax
guardian ad litem fees as costs to meet the
requirements of § 2412(a)(1) and defeat any
associated claim of sovereign immunity by the
nonprevailing government in an FTCA case.”
Maj. Op. at 19, 25. In contrast, the majority’s
footnotes take a completely different approach
and argue that immunity is waived by the
terms of the FTCA itselfSSor rather, by the
terms of the FTCA as it stood more than a half
century ago. See id. at 19 n.11 & 25-26 n.15
(relying on language in 28 U.S.C. § 931(a)
that was repealed in 1948).
There are several serious flaws in the major-
ity’s analysis. First, the majority mistakenly
reads the opening phrase of § 2412(a)(1) as
providing that there can be specific statutory
exceptions to the definition of costs as used in
the EAJA. Properly understood, that line pro-
vides something markedly different: that there
are cases in which the government does not
waive its immunity from the taxation of costs.
Second, the court further mangles the English
31 I recognize that one of the majority’s
“alternative” holdings is that § 1920 enumerates
guardian ad litem fees as a taxable cost. I refute
that claim in part II. For present purposes, how-
ever, my discussion is focused only on the majori-
ty’s first rationale, in which it posits that rule 17(c)
specifically provides both that ad litem fees may be
taxed as costs, and that they may be taxed against
the government under § 2412(a)(1).

-- 36 of 51 --

37
language by finding that rule 17(c) contains an
“express” waiver of immunity, despite recog-
nizing that it does not “specifically state” any-
thing to that effect. Compare Maj. Op. at 19;
with id. at 18. Third, the court gives the fed-
eral rules an impermissibly broad mandate, and
then, fourth, ignores words of limitation that
provide for exceptions to § 2412(a)(1) only as
specified by “statute.” Finally, in what can
only be seen as a concession that its analysis of
§ 2412(a)(1) fails to pass muster, the majority
simply brushes that statute aside in preference
for language that was removed from the FTCA
in 1948 and has since been replaced by other
statutes.
1.
To begin with, the entire premise of the ma-
jority’s discussion of sovereign immunity is
utterly flawed, because it is directed at proving
that ad litem fees fit a non-existent exception
to the EAJA. This is a minor point, however,
so I will not belabor it.
The court claims to find, in rule 17(c), a
specific statutory exception to § 2412(a)(1)’s
limited waiver of immunity. Even if the court
could show that its exception is both specific
and located in a statuteSSsomething it cannot
do, as explained in sub-parts 2 through 4, in-
fraSSit would not support the conclusion
reached by the majority.
The majority flatly misreads § 2412(a)(1)’s
opening clause: “Except as otherwise specifi-
cally provided by statute.” Properly under-
stood, those words do not mean that there are
instances in which costs may be awarded
against the United States even though they are
not specified in § 1920. To the contrary, the
statute’s definition of costs as being those
items that are enumerated in § 1920, but not
including attorney’s fees, is absolute.
Instead, the phrase “Except as otherwise
specifically provided by statute” only modifies
the statement that “a judgment for costs . . .
may be awarded to the prevailing party in any
civil action brought by or against the United
States.” It provides that there may be instanc-
es in which costs are not recoverable against
the United States, even though they are among
those enumerated in § 1920 and are not attor-
neys fees.32 The exception refers only to the
subject and predicate of the sentence: the com-
bined statement that a judgment for costs may
be awarded against the United States. It does
not create an exception to the definition of
costs as items that are “enumerated in § 1920
of this title, but not including the fees and
expenses of attorneys.”
So, the majority’s claim that it has identified
a specific, statutorily grounded exception to §
2412(a)(1) is immaterial: any such exception
can serve only to prevent the taxation of costs;
it can not serve to permit the taxation of things
32 See also G. Van Ingen, Allowance of
Fees for Guardian ad Litem Appointed for Infant
Defendant, as Costs, 30 A.L.R.2d 1148 § 1
(Whitney 2004) (“[T]he governing statutes or rules
of court generally allow costs in favor of the
prevailing party to the litigation. However, the
statutes sometimes recognize the propriety of
denying costs in favor of the prevailing party,
under the proper circumstances.”)

-- 37 of 51 --

38
that are not costs.
2.
The court’s second mistakeSSidentifying a
putative exception to § 2412(a)(1) and calling
it “specific”SSis far worse, and it is one that
should by now seem familiar. Even assuming,
arguendo, that the EAJA allows for exceptions
to the definition of the word costs as used in §
2412(a)(1), rule 17(c) does not constitute a
“specific” exception to the government’s
limited waiver of immunity.
The term “specifically” means “with exact-
ness and precision : in a definite manner.”
WEBSTER’S THIRD NEW INT'L DICTIONARY
2187 (Merriam-Webster 1986). Again, be-
cause rule 17(c) says nothing at all about
guardian ad litem fees, it does not “specifically
provide” for a waiver of the government’s
immunity from their taxation.
Even if the “other order” clause in rule
17(c) is held out as the portion of the rule that
provides for a waiver of immunity,33 it fails to
do so specifically. That clause only says gen-
erally that the court may make other orders; it
says nothing specific about what those orders
may be. It therefore provides no exception to
§ 2412(a)(1)’s general rule that costs may not
be taxed against the government unless they
are enumerated in § 1920.
This is not merely a question of the major-
ity’s ignoring the plain meaning of the word
“specific” in its interpretation of § 2412(a)(1).
Even absent the EAJA’s express requirement
that exceptions to its terms be “specific,” the
same result is dictated by “the traditional prin-
ciple that the Government’s consent to be sued
must be construed strictly in favor of the
sovereign, and not enlarge[d] . . . beyond what
the language requires.” United States v. Nor-
dic Village, Inc., 503 U.S. 30, 34 (1992) (in-
ternal quotations omitted). “Waivers of the
Government’s sovereign immunity, to be ef-
fective, must be unequivocally expressed.” Id.
(quotations omitted).34
No matter how much the majority tries to
contort the meaning of rule 17(c), there is no
sense in which it either “specifically,” “explic-
itly,” “expressly,” “clearly,” or “unequivocally”
waives sovereign immunity from the taxation
of ad litem fees as court costs. The majority
takes the opposite to our ordinary approach
and finds a waiver of immunity in a provision
of the federal rules that is completely silent on
the subject.
This impliedly-express waiver of sovereign
immunity flunks even the most lenient under-
standing of the clear statement rule. Its pres-
ence in an en banc opinion can serve no pur-
pose but to throw our entire sovereign immu-
nity jurisprudence into chaos.
3.
33 An unsupportable claim, for the reasons
I discuss in part I.A.2, supra.
34 See also United States v. Williams,
514 U.S. 527, 531 (1995) (“[W]e may not enlarge
the waiver beyond the purview of the statutory
language.”)

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39
The next flaw in the majority’s analysis of
sovereign immunity is its contention that rule
17(c) is a statute. See Maj. Op. at 19. The
majority recognizes, of course, that even a
specific waiver of immunity is ineffective as an
exception to the EAJA unless it is “provided
by statute.” 28 U.S.C. § 2412(a)(1). The
majoritySSciting only a single district court as
authoritySSfinds that rule 17(c) fits this de-
scription.35
The federal rules are, of course, part of fed-
eral law, and we often give them the same ef-
fect as statutes.36 The Rules Enabling Act
even has an abrogation clause that provides
“[a]ll laws in conflict with [the] rules shall be
of no further force or effect after such rules
have taken effect.” 28 U.S.C. § 2072(b). So,
to the extent the majority argues that the fed-
eral rules have “the imprimatur of Congress”
such that they are considered laws, I fully
agree. See Maj. Op. at 19.
Nevertheless, one of the critical differences
between the federal rules and statutes is that
the former are restricted to certain limited top-
ics. The Rules Enabling Act delegates author-
ity to the Supreme Court only to “prescribe
general rules of practice and procedure.” 28
U.S.C. § 2072(a). Moreover, it specifically
provides that “[s]uch rules shall not abridge,
enlarge or modify any substantive right.” 28
U.S.C. § 2072(b).
The Rules Committee can no more validly
waive the United States’ sovereign immunity
than this court can. It lacks the authority to
speak on behalf of the United States in its ca-
pacity as a sovereign party to a lawsuit. If rule
17(c) said what the majority thinks it says, it
would exist in violation of the limited grant of
authority under which it was enacted.
The Supreme Court addressed this issue in
United States v. Sherwood, 312 U.S. 584
(1941), and held:
[N]othing in the new rules of civil practice
. . . authorizes the maintenance of any suit
against the United States to which it has
not otherwise consented. An authority
conferred upon a court to make rules of
procedure for the exercise of its jurisdiction
is not an authority to enlarge that jurisdic-
tion and the Act of June 19, 1934 . . . au-
thorizing this Court to prescribe rules of
procedure in civil actions gave it no author-
ity to modify, abridge or enlarge the sub-
stantive rights of litigants or to enlarge or
diminish the jurisdiction of federal courts.
Id. at 589-90.
35 See Maj. Op. at 18 (citing ICG
Communications, Inc. v. Allegiance Telecom, 211
F.R.D. 610, 613 (N.D. Cal. 2002). The ICG
Communications case does not even stand for the
proposition attributed to it by the majority: that the
term “statute” is synonymous with, or at least
includes, the federal rules.
36 See, e.g., United States v. Wilson, 306
F.3d 231, 236 (5th Cir. 2002) (finding that
“Congress retains an integral, albeit passive, role in
implementing any rules drafted by the Court,” and
that the federal rules can have the same operative
effect as statutes).

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40
The majority responds with a truism, ob-
serving that the federal rules apply to FTCA
actions. See Maj. Op. at 19 n.11. Of course
they doSSneither I nor the government con-
tends otherwise. Indeed, if the federal rules
did not apply to FTCA actions, our problems
would be greater still, because the district
court would have lacked authority even to ap-
point the guardian under rule 17(c), let alone
to provide for his compensation. Either way,
that contention is entirely beside the point, be-
cause the applicable rules not only fail to say
that they waive the government’s immunity,
but they lack the capacity to do so in any
event.
4.
There is still another problem with the ma-
jority’s use of a federal rule to effect a waiver
of immunity. Again, conceding that the rules
apply to FTCA cases, and assuming for the
moment that the rules are capable of waiving
the government’s immunity, there remains the
problem of whether the rules fit the majority’s
identified exception to § 2412(a)(1). The ma-
jority ignores the fact that Congress chose only
to use the word “statute,” and not “rule,”
when it provided that there may be exceptions
to the EAJA. Federal law is rife with instances
in which the two terms are held out as inde-
pendent legal concepts.37 They have inde
pendent meanings, and as a result I cannot
read Congress’s choice of the the word “stat-
ute” in § 2412(a)(1) as including both tradi-
tional statutes and the federal rules. Rather,
Congress’s use of the word “statute” signals a
conscious decision to limit the sphere of pos-
sible exceptions to the EAJA to laws drafted
by Congress and signed by the President.
Even rule 54(d)(1)SSan interpretation of
which is ostensibly at the heart of the majori-
ty’s opinionSSdistinguishes between the two
terms: “Except when express provision there-
for is made either in a statute of the United
States or in these rules . . . .” FED. R. CIV. P.
54(d)(1). That choice of words is almost iden-
tical to the first line of § 2412(a)(1), but for
one omission: The EAJA permits exceptions
only “as otherwise specifically provided by
statute.” 28 U.S.C. § 2412(a)(1).38
37 See, e.g., Crawford-El v. Britton, 523
U.S. 574, 594 (1998) (stating that “[n]either the
text of § 1983 or any other federal statute, nor the
Federal Rules of Civil Procedure, provide . . .”);
Jackson v. Stinnett, 102 F.3d 132, 134 (5th Cir.
1996) (discussing the Rules Enabling Act and find-
ing that “[a]lthough Congress has authorized the
Court to exercise some legislative authority to
regulate the courts . . . [it] may at any time amend
or abridge by statute the Federal Rules of Civil
Procedure . . . or other federal procedural rules
promulgated under the Rules Enabling Act”) (in-
ternal citations omitted).
38 Rule 11 is similar to rule 54 in that it
also distinguishes between the terms “rule” and
“statute.” It provides that pleadings need not be
verified by affidavit “[e]xcept when otherwise
specifically provided by rule or statute.” FED. R.
CIV. P. 11(a). Similarly, the Federal Rules of
Bankruptcy Procedure provide that “[t]he court
may allow costs to the prevailing party except
when a statute of the United States or these rules
otherwise provides.” FED. R. BANKR. P. 7054(b).

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41
If Congress had wished, it could have pro-
vided that exceptions to the EAJA may be
“specifically provided by statute or rule,” just
as the Rules Committee provided when draft-
ing rule 54. It did not, however, and as a re-
sult this court cannot hold out rule 17(c) as the
source for an exception to the EAJA.
For those reasons, rule 17(c) does not
waive the government’s immunity from the
taxation of costs that are not enumerated in 28
U.S.C. § 1920. Not only does rule 17(c) fail
“specifically [to] provide” an exception to
§ 2412(a)(1), it is also not a statute, and it was
promulgated under a grant of authority that
does not include the power to waive the gov-
ernment’s substantive right to be free from
suit.
5.
Finally, there is the majority’s claim that the
FTCA, rather than § 2412(a)(1), is the relevant
statute for purposes of assessing sovereign
immunity. See Maj. Op. at 19 n.11, 25 n.15.39
That is indeed a tough claim to make, given
that the FTCA’s waiver of immunity speaks
only in terms of “tort claims,”40 and there is a
separate statute that has no purpose other than
to specify the terms on which costs may be
taxed against the government. Compare 28
U.S.C. § 2674, with § 2412(a)(1). “It is an
elementary tenet of statutory construction that
‘[w]here there is no clear intention otherwise,
a specific statute will not be controlled or
nullified by a general one.’” Guidry v. Sheet
Metal Workers Nat’l Pension Fund, 493 U.S.
365, 375 (1990) (quoting Morton v. Mancari,
417 U.S. 535, 550-51 (1974)). Because §
2412 is by far the more specific statute on the
topic of the government’s liability for costs, it
controls over any inferences that may be
drawn from § 2674’s broad statement to the
effect that the government is liable for “tort
The Federal Rules of Criminal Procedure also
distinguish between themselves and statutes,
providing that “[e]xcept as otherwise provided by
a statute or these rules, the court must not permit
the taking of photographs in the courtroom during
judicial proceedings.” FED. R. CRIM. P. 53.
39 That is a strange position for the
majority to take, because the portions of the text to
which those footnotes correspond discuss sovereign
immunity in the context of the correct statute,
§ 2412(a)(1), not the FTCA. See Maj. Op. at 19,
25. The majority’s footnotes in no way clarify the
manner in which rule 17(c) provides a specific
exception to § 2412(a)(1)’s limited waiver of im-
munity; instead, they serve only further to muddy
the waters. If the footnotes are correct, the discus-
sion in the body of the majority opinion is wholly
extraneous. At best, therefore, those footnotes
constitute but another “alternative” holding that
can have no purpose except to provide false com-
fort to a majority that is already well aware of the
dearth of support for its position.
40 No one disputes that the government
was not immune from the Gaddises’ underlying tort
claim, and even the majority cannot bring itself to
assert that the guardian’s request for fees
constitutes a “tort claim” against the United States.
Instead, the issue is only whether the waiver of
immunity with respect to the Gaddises’ claim also
encompasses litigation costs incurred in the course
of trial.

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42
claims” on the same terms as other parties.
To refine its view of the FTCA into a state-
ment that might reasonably control the specific
terms of § 2412(a)(1), the majority points to
language that was removed from the FTCA in
1948. See Maj. Op. at 25-26 n.15. Relying on
United States v. Yellow Cab, 340 U.S. 543,
547 n.4 (1951), the majority then argues that
the current version of the FTCA should be
read as continuing to carry out the policies of
the repealed statute 28 U.S.C. § 931(a) (1946)
(quoted in Yellow Cab, 340 U.S. at 547 n.4.).
The majority reads far too much into Yel-
low Cab, which specified that it was reading
the old and new statutes as being consistent
with one another because the provisions mate-
rial to its dispute had been largely reenacted in
§ 2674, with only minor changes in “phraseol-
ogy.” Id. In contrast, the provisions relevant
to the present dispute were not reenacted in
the FTCA in any form. Yellow Cab therefore
provides no basis for the majority’s conclusion
that we are bound by repealed language that
supposedly undergirds § 2674, rather than the
plain (and valid) language of § 2412(a)(1).
Even if Yellow Cab were not distinguish-
able on that basis, it still would not provide
support for the majority’s analysis. Yellow
Cab was decided a mere three years after the
FTCA’s revision, and the Court needed only
to reconcile the pre- and post-amendment
versions of the same statute. Half a century
later, however, we are required also to con-
sider the significance of the statutes Congress
has enacted in the intervening years:
At the time a statute is enacted, it may have
a range of plausible meanings. Over time,
however, subsequent acts can shape or fo-
cus those meanings. The “classic judicial
task of reconciling many laws enacted over
time, and getting them to ‘make sense’ in
combination, necessarily assumes that the
implications of a statute may be altered by
the implications of a later statute.” United
States v. Fausto, 484 U.S. [439, 453
(1988)]. This is particularly so where the
scope of the earlier statute is broad but the
subsequent statutes more specifically ad-
dress the topic at hand. As we recognized
recently in United States v. Estate of Ro-
mani, [523 U.S. 517, 530-31 (1998),] “a
specific policy embodied in a later federal
statute should control our construction of
the [earlier] statute, even though it ha[s]
not been expressly amended.”
Food & Drug Admin. v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 143 (2000).
Even if Yellow Cab requires us to assume
that the post-amendment FTCA originally ap-
plied to the taxation of costs, we would still be
required to challenge that assumption when it
became inconsistent with intervening statutes.
Because Congress drafted a new statute that
directly addresses the subject of costs, we
cannot just ignore it in preference for language
that was repealed in 1948.41
41 It is also beyond cavil that the EAJA
generally applies to tort suits against the
government. One subsection of the act, §
2412(d)(1)(A), specifically exempts tort cases from

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43
The irony in the majority’s position is that
that position is likely to end up being even
more favorable to the government than the one
I am advocating. Applying the court’s holding
to a far more common problemSSa request for
the payment of attorney’s feesSSit must also
be the case that § 2674 of the FTCA continues
to embody the relevant provisions of the old
statute, § 931(a). That statute flatly prohibited
courts from awarding attorney’s fees against
the government in a tort case. See Yellow
Cab, 340 U.S. at 547 n.4. The EAJA purports
to soften that restriction by allowing an award
of attorney’s fees in some tort cases under
§ 2412(b), see, e.g., Stive v. United States,
366 F.3d 520, 521 (7th Cir. 2004), while still
refusing to require that they be imposed, even
in cases where the government takes an unjus-
tified position, see § 2412(d)(1)(A).
Under the majority’s holding, courts will be
required to look to the repealed language of §
931(a), and not to § 2412, to determine
whether attorney’s fees may be allowed
against the government in an FTCA case.
Because § 931(a) prohibits those awards in all
tort cases, the majority’s holding ultimately
will inure to the great detriment of plaintiffs
seeking redress for government wrongs.
The majority cannot so simply escape the
limitations imposed on the waiver of sovereign
immunity. Because guardian ad litem fees are
not listed in § 1920, they do not fit within §
2412(a)(1)’s requirements. We should reverse
on this basis as well.
C.
Finally, even if the majority correctly holds
that ad litem fees may be taxed against the
government under rule 17(c), it errs in merely
affirming rather than remanding. A remand is
appropriate, because the district court used
rule 54(d)(1), not rule 17(c), as the basis for
its order taxing ad litem costs.
The majority’s own opinion provides dis-
trict courts the authority to determine
[w]hether the compensation payable to the
guardian ad litem will be treated (1) as a
court cost to be taxable against the nonpre-
vailing party or (2) as an expense to be pay-
able out of any funds recovered by or pay-
able to the minor or incompetent person on
whose behalf the guardian ad litem was
appointed.
Maj. Op. at 20. In so doing, the opinion arms
district courts with a level of discretion in ap-
plying rule 17(c) that is more akin to that
found in rule 53(h)(2) than in rule 54(d)(1).
The court need not tax the full amount of the
costs against the losing party, as rule 54(d)
would require, but instead may allocate the
burden among the parties in the manner it finds
most equitable.
Nevertheless, by affirming instead of re-
the provision that mandates an award of attorney’s
fees against the government when it takes an
unreasonable position at trial. No such exception
would be necessary if the EAJA did not otherwise
apply to tort claims brought against the
government.

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44
manding, the majority denies this discretion to
the very court for which it was created: the
district court in the instant case. There is no
doubt that the district court relied exclusively
on rule 54(d) in crafting its order taxing costs
against the government: This court’s decisions
unambiguously have held that the power to tax
ad litem fees derived from rule 54(d);42 the ad
litem moved to have his fees taxed against the
government as costs pursuant to rule 54(d);
and the district court approved the order in
reliance on our duPont line of cases.
The district court had no idea that it was
empowered to distribute the burden of the ad
litem’s fees on any party other than the gov-
ernment. Nor could it have: Today’s decision
is the first to provide that the power to tax
costs stems from rule 17(c), not rule 54(d).
Had the district court known of this power, it
may well have found it more equitable to re-
quire the minor, for whom the ad litem was
appointed, to apply some portion of his
$4,083,103.66 recovery toward the ad litem’s
$46,299 fee.
“When law changes in unanticipated ways
during an appeal . . . this court will generally
remand for a new trial to give parties the ben-
efit of the new law and the opportunity to pre-
sent evidence relevant to that new standard.”
Deffenbaugh-Williams v. Wal-Mart Stores,
Inc., 188 F.3d 278, 282 (5th Cir. 1999). “The
motivation of this rule is fairness: to prevent
injustice to a party who had no reason to ex-
pect a changed rule at the time of trial.” Id.
Even accepting the majority’s eminently
flawed opinion that ad litem fees may be taxed
as costs under rule 17(c), the appropriate rem-
edy is to remand so that the district court can
apply its newly-created powers under rule
17(c) to determine the most equitable means
of allocating the ad litem’s fees among the
parties as it sees fit.
II.
The majority also affirms on the “alterna-
tive” ground that a court appointed guardian
ad litem is one of the items of taxable costs
enumerated by Congress in 28 U.S.C. § 1920.
Specifically, the majority finds that guardians
ad litem are court appointed experts under
§ 1920(6).
It is notable that the majority repeatedly
defends its view as “reasonable,” but never as
correct. See Maj. Op. at 20, 23, 24. That re-
luctance is not particularly surprising: Even
the plaintiffs concede that the majority’s read-
ing is incorrect, and they disavow any reliance
on it. That concession ordinarily would keep
this court from even entertaining the argument,
because a “party’s concession of an issue
means the issue is waived and may not be
revived.” Smith v. United States, 328 F.3d
760, 770 (5th Cir. 2003).
But even if one joins the majority in ignor-
ing the appellees’ concession, the majority’s
first “alternative” holding is manifestly errone-
ous, both as an interpretation of the statute
42 See, e.g., duPont, 771 F.2d at 882
(“As 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).”).

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45
and as an application of that statute to the
facts of this case. The majority’s strained
reading of the text also violates the maxim that
we construe waivers of sovereign immunity
narrowly and in favor of the sovereign.
A.
This court interprets statutes according to
their plain meanings. Conn. Bank of Com-
merce v. Republic of Congo, 309 F.3d 240,
260 (5th Cir. 2002). “In determining a stat-
ute’s plain meaning, we assume that, absent
any contrary definition, ‘Congress intends the
words in its enactments to carry their ordinary,
contemporary, common meaning.’” In re
Greenway, 71 F.3d 1177, 1179 (5th Cir. 1996)
(quoting Pioneer Inv. Serv. v. Brunswick
Assoc., 507 U.S. 380, 388 (1993)) (internal
quotation marks omitted).
The plain meaning of the phrase “court ap-
pointed experts” in § 1920(6) is that it is a ref-
erence to experts appointed under Federal
Rule of Evidence 706. The rule likewise is
titled “Court Appointed Experts,” and courts
consistently refer to individuals appointed un-
der that rule by the same name. In addition to
this common usage, the term “court appointed
expert” is in fact defined as synonymous with
“impartial expert. An expert who is appointed
by the court to present an unbiased opinion
. . . . FED. R. EVID. 706.” BLACK’S LAW
DICTIONARY 600 (7th ed. 1999).
This view is reinforced by legislative his-
tory. The House Committee report provides
that § 1920(6) is an “express reference to the
taxation of the compensation of a court ap-
pointed expert, as permitted by Rule 706 of
the Federal Rules of Evidence.”43 H.R. Rep.
No. 95-1687, 95th Cong., 2d Sess. 13, re-
printed in 1978 U.S.C.C.A.N. 4652, 4664. As
a result, the plain meaning of “court appointed
experts,” as used in § 1920(6), is a specific
reference to experts appointed under rule 706
and does not include guardians ad litem ap-
pointed under rule 17(c). Cf. FED. R. EVID.
706; FED. R. CIV. P. 17(c).
In contrast, the court posits that guardians
ad litem fit the ordinary, contemporary, and
common meaning of the term “court appointed
expert,” just because they “liaise with the court
and are charged with the important duty of
providing their insight as to how the judicial
process is or is not comporting with the best
interests of the minor.” Maj. Op. at 24.
That claim is unconvincing, for the same vague
description could be applied to a number of
parties that § 1920 otherwise references by
name.
For example, interpreters are selected and
appointed by the “presiding judicial officer” at
trial, and there is no question but that they ap-
ply their skills toward a discrete task that is
43 The majority dismisses that statement
in a footnote, arguing that the inclusion of “court
appointed experts” in § 1920 was such an after-
thought that any explanation for its inclusion is
presumptively unreliable. See Maj. Op. at 24-25
n.13. That observation leads, however, to the in-
verse of the majority’s conclusion. If indeed Con-
gress paid little heed to its decision to include the
fees of court appointed experts in § 1920, it is far
more likely that the term is used in a familiar, as
opposed to novel, way.

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46
essential to fair judicial administration. Cf. 28
U.S.C. § 1827. The same is true of court re-
porters. Federal law provides that “[e]ach dis-
trict court of the United States . . . shall ap-
point one or more court reporters,” 28 U.S.C.
§ 753, and theirs is certainly a unique skill that
is applied to a discrete problem in trial man-
agement.
Yet, despite the “expert” status of reporters
and interpreters under the majority’s new rule,
their fees receive individualized mention in
§ 1920(2) and (6). The majority’s reasoning
therefore ignores the maxim that courts should
avoid an interpretation of a statute that “ren-
ders some words altogether redundant.” Gus-
tafson, 513 U.S. at 574.44
Accordingly, it takes something more than
a court appointment and responsibility over an
“important duty” to qualify as a court appoint-
ed expert within the meaning of § 1920(6). In
this regard, it is telling that an ad litem need
not even be an expert to qualify for appoint-
ment under rule 17(c).
“Qualification cannot occur in guardian ad
litem situations because no recognized area of
general expertise with regard to ‘custody’ or
‘child placement’ exists.” R. Lidman & B.
Hollingsworth, The Guardian ad Litem in
Child Custody Cases: the Contours of Our
Judicial System Stretched Beyond Recogni-
tion, 6 GEO. MASON L. REV. 255, 275 (1998).
No matter how valuable are the skills pos-
sessed by an ad litem, the legal system does
not generally refer to them as “experts.”
I cannot presume that the lone exception to
this practice is Congress’s choice of the phrase
“court appointed experts” in § 1920(6), a
phrase that has a far more naturalSSand lim-
itedSSconnotation as a reference to rule 706
experts.45 However valuable or important the
duties of an ad litem are, they do not automat-
ically make someone appointed to perform that
function a “court appointed expert.”
The majority’s interpretation also violates
the interpretive canon that “where general
words follow specific words in a statutory
enumeration, the general words are construed
to embrace only objects similar in nature to
those objects enumerated by the preceding
specific words.” Wash. State Dep't of Social
& Health Servs v. Guardianship Estate of Kef-
feler, 537 U.S. 371, 384 (2003). Section 1920
is quite specific in providing for the taxation of
costs incurred by a particular individual: The
clerk, marshals, court reporters and interpret-
ers are all specifically provided for. Moreover,
these descriptions refer to the officials’ job
titles, not merely to the attributes they bring to
that positionSSthe list is, in other words,
taxonomical, not descriptive.
44 The majority also sweeps into its fold
masters appointed under rule 53, even though the
rules independently provide a means for their com-
pensation. See FED. R. CIV. P. 53(h).
45 At oral argument, the ad litem disclosed
that this was his first time serving in that capacity.
That he did so competently only underscores the
fact that an ad litem can be a relative novice, and
yet still satisfy all the requirements of the job.

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47
Against that backdrop, the ordinary pre-
sumption is that the phrase “court appointed
expert” is a similarly specific reference to the
title of a court official, not a broad description
of the skill set possessed by an individual who
serves the court. It means the very persons
who ordinarily would be referred to as “court
appointed experts,” not those who were ap-
pointed by the court and generally could be
described as possessing some measure of ex-
pertise. Because rule 706 experts ordinarily
are referred to as “court appointed experts,”
they fit within the statute; guardians ad litem
appointed under rule 17(c) do not. Cf. FED. R.
EVID. 706; FED. R. CIV. P. 17(c).
B.
Even if the majority correctly holds that
guardians ad litem could be “experts” within
the meaning of § 1920(6), it would be absurd
to apply that holding to the present case. I do
not mean to denigrate the services of the ad
litem in this case, who, by all accounts, per-
formed his job competently and diligently.
Nevertheless, the circumstances of his appoint-
ment as an ad litem fall far short of anything
resembling the qualification and appointment
of an expert.
The Gaddises originally moved for the ap-
pointment of an ad litem and recommended
that this person be designated to serve in that
capacity. Their summation of his qualifica-
tions reads, in its entirety:
Plaintiffs would respectfully request that
attorney George Bean be appointed as Ad
Litem for the Minor. Mr Bean is familiar
with the general facts of the case and has
expressed his willingness to serve as ad
litem pending approval by the Court.
The possession of a general familiarity with a
subject, and a willingness to serve, do not
make someone an expert in that field. Because
this particular ad litem possessed no expertise
and was not appointed to be an expert, there is
no basis for the majority’s conclusion that his
fees may be taxed against an adverse party on
the theory that they are costs incurred by an
“expert.”
C.
The majority asserts that this “alternative”
holding exists free and clear of any sovereign
immunity concerns, because a finding that
guardians ad litem are enumerated within
§ 1920 is tantamount to a finding that the
government has waived its immunity in
§ 2412(a)(1) . See Maj. Op. at 25. That is
only half right. The court is correct to note
that the EAJA waives immunity for those
items that are “enumerated in section 1920.”
28 U.S.C. § 2412(a)(1). But, what the major-
ity fails to acknowledge is that its opinion is as
much an interpretation of § 2412(a)(1) as it is
of § 1920. This is because the majority must
identify the meaning of the words “as enumer-
ated in section 1920” before finding that the
government has waived its immunity for the
taxation of costs.
As a result, the majority’s view that it can
adopt any possible interpretation of § 1920, no
matter how strained or tenuous, violates the
maxim that waivers of immunity are not to be
enlarged “beyond what the language requires.”
Nordic Village, 503 U.S. at 34; Williams, 514

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48
U.S. at 531. Even if it is possible to interpret
§ 1920 in the manner adopted by the major-
itySSbecause nothing in the statute conclusive-
ly forecloses its viewSSthat is not enough.
There is nothing in either § 1920 or § 2412-
(a)(1) that even comes close to compelling the
majority’s view that the government has
waived its immunity from the taxation of
guardian ad litem fees as costs.
III.
I now come to the majority’s third, and
final, explanation for its self-described “fair
and proper” result. Maj. Op. at 29. In this
next “alternative” version of its holding, the
majority throws all prior arguments out the
window, and holds that the case is much ado
about nothing. Because we have previously
reached the same result without considering
the arguments presented by the government in
this appeal, we have obviously rejected them,
says the majority, so we shouldn’t waste time
today considering their merits.46
The logic of that approach is overwhelm-
ing. Surely it is not better that we leave the
tough questions to a three-judge panel that did
not consider the question, than to the collec-
tive wisdom of sixteen judges who have the
benefit of having the issued briefed and orally
argued. The majority’s approach serves no
purpose but to absol ve the en banc court of
the responsibility for reaching the relatively
obvious, if unpalatable, conclusion that the
government’s position is the correct one.
This final “alternative” holding rests on the
proposition that Crawford Fitting is inapposite
to the question whether guardian ad litem fees
may be taxed as costs. To reach its conclu-
sion, the majority first observes that we have
favorably cited the duPont line of cases for
several years after Crawford Fitting and
thereby have upheld the right of district courts
to tax ad litem fees as costs under rule 54-
(d)(1). See Maj. Op. at 26 & n.16.
Further, the majority reasons, Crawford
Fitting has no relevance to the present dispute,
because “[n]either the term ‘guardian ad litem’
nor the phrase ‘guardian ad litem fees’ appears
anywhere in the Supreme Court’s decision in
Crawford Fitting.” Id. at 28. Lastly, the
majority reasons, there are a variety of states
in which “state courts applying their respective
state statutes” have found that ad litem fees
are taxable items of cost; as a result, federal
statutes must provide for the same result. Id.
The only inference to be drawn from the
fact that our recent cases have taxed ad litem
fees without mentioning Crawford Fitting, is
that the parties in those cases did not make the
same argument that the government has put
forward here. Because Dickerson, 280 F.3d at
478; Lebron, 279 F.3d at 332; and Gibbs, 210
F.3d at 506, make no mention of Crawford
Fitting, they do not stand for the proposition
46 See Dickerson v. United States, 280
F.3d 470, 478 (5th Cir. 2002); Lebron v. United
States, 279 F.3d 321, 332 (5th Cir. 2002); Gibbs
v. Gibbs, 210 F.3d 491, 506 (5th Cir. 2000).
Those cases rely entirely on duPont, and they
neither discuss the potential impact of Crawford
Fitting on duPont nor address the issues raised in
today’s opinion.

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49
that the government’s arguments based upon
that case are without merit. To the contrary,
the only significance of those cases is that they
bound the original panel in this case to a result
that could not be squared with Crawford Fit-
ting. In other words, we took this case en
banc to consider whether those decisions are in
error; it is an insufficient answer merely to
observe that those panels reached a decision.
Likewise, there is no significance to the fact
that Crawford Fitting fails to mention the term
“guardian ad litem.” This is because the case
creates a rule of exclusion, not inclusion. In
Crawford Fitting, the Court specifically re-
jected the view that Ҥ 1920 does not preclude
taxation of costs above and beyond the items
listed,” as well as the view that “Rule 54(d) is
a separate source of power to tax as costs
expenses not enumerated in § 1920.” Craw-
ford Fitting, 482 U.S. at 441.
Instead it held, in no uncertain terms, that
costs are taxable under rule 54(d) only if they
are among those items that Congress specifi-
cally enumerated in 28 U.S.C. § 1920. Indeed,
“§ 1920 defines the term ‘costs’ as used in rule
54(d),” and “no reasonable reading of these
provisions together can lead to [the] conclu-
sion” that items of cost may be taxed even
though they are not enumerated in § 1920.47
Id. That the Court reached this result in the
context of finding that expert witness fees may
not be taxed above the amount specified in 28
U.S.C. §§ 1920 and 1821(b) is of no moment.
If the Court instructs lower courts that they
may tax only the six items listed in § 1920, and
then holds that they may not tax a seventh
item, we are bound to apply that decision to
say “nor this eighth, nor this ninth, nor this
tenth item either.”
Outside the guardian ad litem context, we
have applied Crawford Fitting to hold that a
federal district court may not tax, as costs,
expenses incurred in preparing videotaped de-
positions, because that item is not found in
§ 1920’s list. Mota v. Univ. of Tex. Houston
Health Science Ctr., 261 F.3d 512, 529-30
(5th Cir. 2001). Likewise, video technician
fees are not taxable under § 1920, nor are the
production of ‘blow-ups’ of exhibits. Coats v.
Penrod Drilling Corp., 5 F.3d 877, 891 (5th
Cir. 1993). In the closest analogy to the
present case, we held that a mediator’s fees are
not covered by § 1920 either and, as a result,
may not be taxed as costs in the wake of
Crawford Fitting. Mota, 261 F.3d at 530.48
The majority also errs in claiming that its
conclusion is reinforced by the practice in state
courts. Its own citations reveal that ad litem
47 Any doubt concerning that result is
removed by the subsequent statement, in W. Va.
Univ. Hosp., Inc. v. Casey, 499 U.S. 83, 86
(1991), that in Crawford Fitting the Court “held
that [§§ 1920 and 1821] define the full extent of a
federal court’s power to shift litigation costs absent
express statutory authority to go further.”
48 See also Brisco-Wade v. Carnahan,
297 F.3d 781, 782 (8th Cir. 2002) (holding that §
1920 does not authorize taxing mediation fees as
costs).

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50
fees are taxable costs in those states only be-
cause state statutes or procedural rules spe-
cifically provide for that result in a way that
the federal rules and statutes do not.
As I have already shown, the Alabama,
Mississippi, North Carolina, Tennessee, and
Texas procedural rules contain specific provi-
sions stating that ad litem fees may be taxed as
costs. In addition, the majority relies on sev-
eral state statutes, evidently in the hope that
they will compare favorably to § 1920. They
do not. The Illinois statute cited by the major-
ity provides: “A guardian ad litem or special
administrator is entitled to such reasonable
compensation as may be fixed by the court to
be taxed as costs in the proceedings and paid
in due course of administration.” 755 ILL.
COMP. STAT. ANN. 5/27-4 (West 2004). Sim-
ilarly, the Michigan statute relied on by the
majority provides: “The guardian ad litem
may be allowed reasonable compensation by
the court appointing him, to be paid and taxed
as a cost of the proceedings as directed by the
court.” MICH. COMP. LAWS ANN. § 600.-
2045(2) (West 2004).
All of these states expressly provide for the
compensation of guardians ad litem as a tax-
able court cost, something federal law flatly
does not do. “[I]t is a general rule that in ac-
tions at law, as distinguished from suits in
equity, costs may not be allowed in the ab-
sence of statute or rule of court authorizing
such relief.” Van Ingen, supra, 30 A.L.R.2d
1148 § 2. “[I]n many jurisdictions the courts
have been expressly authorized by statute to
tax as costs fees for the services of guardians
ad litem.” Id.
It is up to Congress to decide whether
guardian ad litem fees may be taxed as costs.
In its present form, the statute Congress en-
acted to address that topic fails to enumerate
guardian ad litem fees as a taxable item of
cost, and, as a result, ad litem fees may not be
taxed under rule 54(d), any more than can the
expenses disallowed in Mota, Coats, and Bris-
co-Wade. If Congress chooses, it can fix this
result by amending § 1920; unless and until it
does so, Crawford Fitting precludes district
courts from taxing guardian ad litem fees.
Although I will not repeat all the arguments
I make in part I.B, supra, sovereign immunity
also bars the result advocated by the majority
in this “alternative” holding. This would be so
even if Crawford Fitting had never been de-
cided, or had been decided in a manner con-
sistent with that case’s dissenting opinion and
today’s majority opinion. Regardless of the
courts’ power to tax costs under rule 54(d)(1),
the government has waived its immunity from
costs only as enumerated in § 1920. See 28
U.S.C. § 2412(a)(1).
IV.
One sentence in the majority opinion sums
up the real reason for its decision to affirm the
district court:
While we recognize the underlying treat-
ment the Supreme Court gave to the inter-
play between Rule 54(d) and § 1920 in
Crawford Fitting, we are reluctant to and
thus do not apply any such proscription

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51
here to the taxation of guardian ad
litem fees as costs . . . .
Maj. Op. at 26 (emphasis added). Reluctance
to reach a result the majority perceives as un-
palatable is no excuse for ignoring controlling
Supreme Court precedent or for re-writing
rules and statutes. Those powers properly lie
with others. I therefore respectfully dissent.

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