In re: Cardizem v. ( 2007 )

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 07a0071p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
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In re: CARDIZEM CD ANTITRUST LITIGATION.
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EUGENIA WYNNE SAMS,
Plaintiff-Appellant, -
No. 05-2375
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GORDON BALL, -
Attorney-Appellant, -
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v.
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STATE ATTORNEYS GENERAL; STATE LAW
PLAINTIFFS, -
Plaintiffs-Appellees, -
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Defendant-Appellee, -
STATE OF TENNESSEE,
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Defendants. -
HOECHST AKTIENGESELLSCHAFT, et al.,
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Appeal from the United States District Court
for the Eastern District of Michigan at Detroit.
No. 99-73190—Nancy G. Edmunds, District Judge.
Argued: December 8, 2006
Decided and Filed: February 22, 2007
Before: CLAY, ROGERS, and SUTTON, Circuit Judges.
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COUNSEL
ARGUED: Gordon Ball, BALL & SCOTT, Knoxville, Tennessee, for Appellants. Jay Himes,
ATTORNEY GENERAL, STATE OF NEW YORK, New York, New York, for Appellees.
ON BRIEF: Gordon Ball, BALL & SCOTT, Knoxville, Tennessee, for Appellants. Jay Himes,
Robert L. Hubbard, ATTORNEY GENERAL, STATE OF NEW YORK, New York, New York,
Michelle M. Rick, OFFICE OF THE ATTORNEY GENERAL, Lansing, Michigan, for Appellees.
1
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OPINION
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SUTTON, Circuit Judge. At the end of a case, “costs” are awarded to prevailing parties “as
of course” for an assortment of trial-related expenses—such as court fees, court reporter fees and,
as pertinent here, “compensation of court appointed experts.” Fed. R. Civ. P. 54(d)(1); 28 U.S.C.
§ 1920(6). At the end of this case, the district court ordered Gordon Ball, an attorney for one of the
parties to this action, to pay costs associated with the compensation of Rust Consulting, Inc., a class-
action settlement administrator hired to disburse the $80 million settlement in this case. Because
Rule 54(d)(1) and § 1920(6) permit costs to be charged against parties, not their counsel, we reverse.
I.
In 1997, Hoechst Marion Roussel and Andrx Pharmaceuticals allegedly conspired to
minimize competition for one of Hoechst’s products—Cardizem CD, which is prescribed for the
treatment of angina (chronic chest pains) and high blood pressure as well as for the prevention of
heart attacks and strokes. In connection with the alleged conspiracy, Hoechst paid Andrx nearly $90
million in return for Andrx keeping a competing generic drug off the market. In August 1998,
individual consumers (the “state law plaintiffs”) filed what would become the first of 19 state law
actions against the companies, and in 1999 the Judicial Panel on Multidistrict Litigation transferred
the actions to the Eastern District of Michigan. The attorneys general of all 50 States, Puerto Rico
and the District of Columbia (the “attorneys general”) eventually joined the litigation on behalf of
their States and as parens patriae on behalf of the residents of their respective jurisdictions.
On January 29, 2003, the district court preliminarily approved an $80 million settlement of
all of the claims. The proposed settlement class consisted of “[a]ll consumers and Third Party
Payers . . . who purchased and/or paid all or part of the purchase price of Cardizem CD Products”
during the relevant time frame, including “all members of any class or classes asserted in any State
Action.” JA 390–91. On October 21, 2003, after conducting a fairness hearing concerning the
settlement, the court certified the settlement class and granted final approval of the settlement
agreement.
Eugenia Sams is a Tennessee resident who purchased Cardizem CD during the time period
implicated by the alleged conspiracy. Represented by Gordon Ball, she filed a complaint against
the defendants in Tennessee state court in 1998, alleging violations of the Tennessee Trade Practices
Act and the Tennessee Consumer Practices Act. The drug companies removed her case to federal
district court, after which the court transferred the case to the Eastern District of Michigan along
with the other state law actions.
Sams objected to the settlement. While she was not alone in doing so, she was nearly so:
she was one of just two class members (out of 37,387) who objected to the settlement. The court
found little to be said for her objections, concluding that they were “all without merit.” JA 569.
Sams appealed the district court’s settlement-approval order. In response, the state law
plaintiffs and the attorneys general sought, and obtained, permission to require Sams to post an
appeal bond. See Fed. R. App. P. 7. The court ordered Sams to post a bond for $174,429 to cover
projected attorney fees and administrative costs made necessary by the appeal. Although Sams
proceeded with her appeal regarding the propriety of the settlement and appealed the district court’s
bond order, she never posted the bond.
On December 14, 2004, the Sixth Circuit resolved Sams’ appeals in a single opinion. See
In re Cardizem CD Antitrust Litigation, 391 F.3d 812 (6th Cir. 2004). The court affirmed the appeal
No. 05-2375 In re Cardizem CD Antitrust Litigation Page 3
bond, reasoning that “costs” under Appellate Rule 7 cover expenses “properly awardable under the
relevant substantive statute.” Id. at 817 (internal quotation marks omitted). Because Sams had filed
her claim under state law, the court held that the “relevant substantive statute” was Tennessee Code
§ 47-18-109, the consumer-rights statute under which she had filed her lawsuit. Id. The court then
held that the statute provided for the types of fees and costs covered by the appeal bond, including
attorney fees and administrative costs, and that the district court did not abuse its discretion in
calculating the amount of the bond. Id. at 818. The court then dismissed Sams’ challenge to the
settlement agreement because she failed to post the appeal bond. Id.
On remand, the state law plaintiffs and the attorneys general filed a motion to charge Sams
with (1) the administrative costs caused by the delay ($255,683) under Rule 54(d)(1) and 28 U.S.C.
§ 1920(6) and (2) attorney fees caused by the delay ($290,363) under Rule 54(d)(1) and Tennessee
Code § 47-18-109. Separately, they also filed a motion (1) to hold Ball and/or Sams in contempt
for failing to post the appeal bond, (2) to sanction Ball for costs, fees and expenses incurred by the
delay in the settlement under 28 U.S.C. § 1927 and (3) to require Sams to appear and testify at a
hearing related to these issues.
The district court granted the motion for costs under § 1920(6), explaining that Rust
Consulting, the settlement administrator, was “a court-appointed expert in this matter that provided
services essential to the resolution of this case.” JA 373. In doing so, the court ordered the lawyer
(Ball), not the party (Sams), to pay the $255,683 in administrative costs attributable to the delay.
The court declined to award attorney fees under the Tennessee statute. It first acknowledged
uncertainty over whether the law authorized such fees, then explained that, because counsel for the
state law plaintiffs and the attorneys general already had been adequately compensated in the case,
it “would exercise its discretion and not award these requested” fees even if Tennessee law permitted
them. JA 378.
The court denied the § 1927 motion because, while the statute permits federal courts to
impose costs and fees on attorneys who “unreasonably and vexatiously” “multipl[y]” proceedings,
it permits such sanctions only for misconduct in that court. JA 378–79. In this instance, the court
noted, the state law plaintiffs and attorneys general had sought these fees and costs for alleged
vexatious conduct that occurred in the Sixth Circuit, not in the district court. The court finally
denied the contempt motion, reasoning that even if contempt were appropriate, “[p]laintiffs will have
obtained adequate relief for the delay caused by Sams’ appeals” through the taxation of costs to Ball.
JA 379–80.
II.
On appeal, Ball challenges the district court’s authority to issue the costs award—first
because the relevant provisions at most allow costs to be imposed on parties, not their attorneys, and
second because Rust Consulting was not a “court appointed expert.” We give fresh review to
questions about the meaning of Rule 54(d) of the Federal Rules of Civil Procedure and 28 U.S.C.
§ 1920(6); once it is established that the district court has authority to award costs, if indeed it does,
we give deferential review to its decision to impose costs and to the amount of any award. See BDT
Prods., Inc. v. Lexmark Int’l, Inc., 405 F.3d 415, 417 (6th Cir. 2005) (“As long as statutory authority
exists for a particular item to be taxed as a cost, we do not overturn a district court’s determination
that the cost is reasonable and necessary, absent a clear abuse of discretion.”) (internal quotation
marks and brackets omitted).
No. 05-2375 In re Cardizem CD Antitrust Litigation Page 4
A.
Rule 54(d)(1) of the Federal Rules of Civil Procedure says:
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.
Section 1920 says:
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.
The Supreme Court has set the table for resolving this dispute by giving us two pieces of
guidance about the interrelation of the statute and the rule. The costs that courts may tax under Rule
54(d)(1) are confined to the costs itemized in 28 U.S.C. § 1920. Crawford Fitting Co. v. J. T.
Gibbons, Inc., 482 U.S. 437, 441 (1987) (“[Section] 1920 defines the term ‘costs’ as used in Rule
54(d).”); id. (rejecting argument that “Rule 54(d) is a separate source of power to tax as costs
expenses not enumerated in § 1920” because “no reasonable reading of these provisions together
can lead to this conclusion, for [it] renders § 1920 superfluous”). And the discretion that Rule
54(d)(1) gives courts (the “unless the court otherwise directs” proviso) is discretion to decline
requests for costs, not discretion to award costs that § 1920 fails to enumerate. Crawford Fitting,
482 U.S. at 441–42 (“The discretion granted by Rule 54(d) . . . is solely a power to decline to tax,
as costs, the items enumerated in § 1920.”).
At least one problem with the costs award in this case is that Rule 54(d) and § 1920 do not
permit district courts to impose costs on attorneys, as opposed to the parties they represent. While
neither the rule nor the statute expressly says that costs may be awarded only against parties, that
is the plain implication of what they do say. Start with the statute. The first sentence of § 1920
concerns taxable costs that “[a] judge or clerk of any [federal] court . . . may” impose. (Emphasis
added.) While one thinks of the types of costs covered by § 1920—court fees, court reporter fees,
witness fees and the like—as being imposed as a matter of course by the clerk of the court on the
No. 05-2375 In re Cardizem CD Antitrust Litigation Page 5
losing party, the federal courts have no tradition of permitting clerks to impose such costs on the
party’s counsel. The last sentence of the statute confirms the point: It indicates that the bill of costs,
once allowed, will be “included in the judgment or decree,” which runs against parties, not non-
parties.
Rule 54(d)(1) points in the same direction. It speaks of allowing costs “as of course to the
prevailing party.” The norm of awarding such costs—awarding them “as of course”—equates to
the norm of imposing them on the party, not the counsel. Elsewhere in Rule 54(d)(1), the rule
provides for costs “against the United States, its officers, and agencies”—all of them potential
parties to, not counsel in, litigation. Throughout the various provisions of Rule 54, the rule also
refers to “relief” for, “rights” of and “liabilities” of “parties,” further undermining the notion that
the rule may be invoked to impose costs on non-parties. And still another provision of the rule says
that, “[o]n request of a party or class member,” the court will permit an adversary proceeding
regarding a claim for attorneys’ fees. Fed. R. Civ. P. 54(d)(2)(C). By permitting “part[ies]” and
parties alone to challenge a proposed attorney-fee award, the rule necessarily implies that fees (as
well as costs under the same rule) may be imposed only on parties, not their lawyers.
Also supporting this interpretation are other provisions that expressly permit costs and fees
to be imposed on attorneys. Section 1927 of Title 28, for example, permits courts (though not court
clerks) to require an “attorney” “to satisfy personally the excess costs, expenses, and attorneys’ fees”
incurred because the attorney “so multiplies the proceedings in any case unreasonably and
vexatiously.” And Rule 11 permits courts to do likewise. See Fed. R. Civ. P. 11(c) (permitting Rule
11 sanctions to be imposed on “attorneys” and “law firms” for, among other things, filing bad-faith
or frivolous pleadings); id. 11(c)(2) (Sanctions may include “an order directing payment to the
movant of some or all of the reasonable attorneys’ fees and other expenses incurred as a direct result
of the violation.”).
The express authorization to allow courts to impose these costs on attorneys, and to do so
only after the attorney has engaged in misconduct, suggests that neither § 1920 nor Rule 54(d)
permits such awards on a discretionary basis. Otherwise, § 1927 and Rule 11 would have little
value. Why undertake the burden of establishing cause under these provisions if § 1920 and Rule
54(d)(1) may be invoked to obtain the same award merely as an exercise of judicial discretion? The
irresistible answer, it seems to us, is that the express provision for costs and fees against attorneys
upon a showing of misconduct in one set of provisions (§ 1927 and Rule 11) implies the absence of
such authority in another set of provisions (§ 1920 and Rule 54) that instructs courts to award costs
“as of course.” See Christensen v. Harris County, 529 U.S. 576, 583 (2000).
Only one court of appeals case, to our knowledge, has considered this issue, and it reached
the same conclusion. In rejecting a similar argument, the Second Circuit explained that “Rule
54(d)(1) is phrased permissively not because it permits a court to impose costs on counsel instead
of the losing party, but rather because it permits a court to refuse to impose costs on the losing party
at all.” Wilder v. GL Bus Lines, 258 F.3d 126, 129 (2d Cir. 2001) (per curiam). Acknowledging that
Rule 11, § 1927 and a court’s inherent powers permit federal courts to impose costs against an
attorney as a sanction, the court reasoned that “[s]uch sanctions . . . are appropriate only where the
attorney has acted in bad faith in the actions that led to the lawsuit or in the conduct of the litigation,
or where the attorney has negligently or recklessly failed to perform his responsibilities as an officer
of the court.” Id. at 130. By contrast, the court added, allowing courts to tax costs against attorneys
under Rule 54(d) “as of course,” without any showing of bad faith or wrongdoing on their part,
might “unduly deter attorneys from representing clients who possess non-frivolous claims.” Id.
In defending the district court’s order, the state law plaintiffs and attorneys general persist
that courts nonetheless retain “equitable discretion” to impose costs on attorneys. But the purpose
of Rule 54(d) and § 1920 is to define what costs may be imposed, when and how—not to offer those
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explications, then leave it to judicial discretion to shift costs in an entirely different way under their
historic equitable powers. Otherwise, Ҥ 1920, which enumerates the costs that may be taxed, serves
no role whatsoever.” Crawford Fitting, 482 U.S. at 441. If, as in Crawford Fitting, the Court was
unwilling to permit courts to invoke their equitable powers to exceed the maximum witness fee
allowed by statute per day, it seems equally inappropriate to permit a court to invoke its equitable
powers to impose costs on attorneys rather than on the parties they represent. At the end of the day,
the discretion permitted under the rule and the statute concerns whether to award costs, not whether
to tax them against a non-party. Wilder, 258 F.3d at 129; cf. Crawford Fitting, 482 U.S. at 442.
Nor do the two cases cited in support of this equitable-discretion proposition—Carter-Jones
Lumber Co. v. Dixie Distributing Co., 166 F.3d 840 (6th Cir. 1999), and Singleton v. Smith, 241 F.3d
534 (6th Cir. 2001)—advance it. While Carter-Jones says that “a court of equity has traditionally
had the power to fashion any remedy deemed necessary and appropriate to do justice in a particular
case,” 166 F.3d at 846, it does not address how Rule 54(d) and § 1920 channel and ultimately limit
that authority. And Singleton merely acknowledges that Rule 54(d) “creates a presumption in favor
of awarding costs, but allows denial of costs at the discretion of the trial court,” 241 F.3d at 539
(internal quotation marks omitted), without saying anything about the imposition of costs on non-
parties.
The state law plaintiffs and attorneys general next point out that courts may order attorneys
to pay costs and damages to prevailing appellees under Rule 38 of the Federal Rules of Appellate
Procedure, which is silent as to who must pay such expenses, suggesting that courts also may tax
costs against attorneys under Rule 54, which does not expressly limit cost awards to parties. But,
as we have shown, Rule 54 and § 1920 offer several contextual indications that courts may impose
these costs only against parties. Rule 54 and Appellate Rule 38, at any rate, differ in a critical
respect: The latter requires a determination “that an appeal is frivolous” before attorneys for
appellants may be asked to bear these expenses while Rule 54 provides for cost-shifting “as of
course.” The frivolity predicate of an Appellate Rule 38 order parallels the unreasonableness and
vexatiousness determinations required by § 1927, suggesting that the appropriate analogy is between
Appellate Rule 38 and § 1927, not between Appellate Rule 38 and Civil Rule 54 (or § 1920).
B.
The state law plaintiffs and attorneys general next offer two alternative bases for affirming
the district court’s order. See City Mgmt. Corp. v. U.S. Chem. Co., Inc., 43 F.3d 244, 251 (6th Cir.
1994) (noting that appellate courts may affirm on alternative grounds supported by the record).
They first point out that, when this case initially came before our court, we held that the district court
was entitled to include Rust’s projected “administrative costs” as part of the Rule 7 appeal bond
entered against Sams under Tennessee Code § 47-18-109. Cardizem, 391 F.3d at 817–18. Under
these circumstances, they argue, we are bound by this ruling under the “law of the case” doctrine.
Not true. To begin, the appellees did not seek, and they did not obtain, costs from the district court
under the Tennessee law—whether under the law-of-the-case doctrine or under any other doctrine.
Instead, they asked for $290,363.73 of attorneys fees/costs under the statute, identified as those
attributable to preparation for the first appeal by the state law plaintiffs and attorneys general. In
their application, they then distinguished this amount from the $255,683.10 in “expert witness
expenses” requested for “Rust’s administrative costs” under § 1920(6). JA 657–58. The district
court, moreover, entered, and we affirmed, the appeal bond against Sams, not Ball. Tennessee law,
it appears, permits courts to tax costs against parties, not their attorneys, see Tenn. Code Ann. § 47-
18-109(e)(2) (“[T]he court may require the person instituting the [meritless] action to indemnify the
defendant . . . .”) (emphasis added); Perdue v. Green Branch Mining Co., 837 S.W.2d 56, 60 (Tenn.
1992) (“[T]he trial judge may apportion the costs between the litigants as . . . the equities demand.”)
(emphasis added), and the state law plaintiffs and attorneys general have not pointed to any case that
No. 05-2375 In re Cardizem CD Antitrust Litigation Page 7
holds to the contrary. Under these circumstances, the appellees have failed to supply a legitimate
basis for affirming the judgment on this alternative ground.
Equally unavailing is the second alternative ground offered for affirmance—28 U.S.C.
§ 1927. When appellees relied on this statute in the district court, the court rejected the argument
on the ground that the “Sixth Circuit, rather than this Court, has authority to decide whether
attorneys’ fees, costs, and expenses in connection with Sams’ appeals are warranted . . . because it
is the Sixth Circuit where Plaintiffs allege Mr. Ball unreasonably and vexatiously multiplied the
proceedings.” JA 378. We agree because that is what the case law generally says and because Rust
Consulting’s additional expenses were caused not by the filing of the notice of appeal, but by the
pursuit of that appeal in the Sixth Circuit. See Webster v. Sowders, 846 F.2d 1032, 1040 (6th Cir.
1988) (stating that “it appears clear that a trial judge cannot sanction a party or lawyer for taking an
appeal” under Rule 11); see also Manion v. Am. Airlines, Inc., 395 F.3d 428, 433 (D.C. Cir. 2004)
(holding that “a district court may not award the cost of interlocutory appellate proceedings as part
of sanctions under § 1927); Connor v. Travis County, 209 F.3d 794, 800–01 (5th Cir. 2000) (holding
that district court improperly sanctioned attorney for filing frivolous appeal); Morris v. Peterson,
871 F.2d 948, 952 (10th Cir. 1989) (holding that sanctioning “attorneys for conduct on appeal is not
within the authority of the district courts and is reserved to the court in which the appellate conduct
occurred”).
III.
Our determination that the district court should not have imposed this costs award on Ball
suffices to resolve this appeal. We therefore need not decide the second question presented:
whether § 1920(6)’s reference to “court appointed experts” includes settlement administrators or
whether it is limited to experts that, unlike Rust Consulting, were appointed by the court under Rule
706 of the Federal Rules of Evidence. Cf. PDK Labs. Inc. v. DEA, 362 F.3d 786, 799 (D.C. Cir.
2004) (Roberts, J., concurring in part and concurring in the judgment) (“[I]f it is not necessary to
decide more, it is necessary not to decide more.”). It bears noting, however, that appellees originally
sought to impose this sizable costs award ($255,683) on the party (Sams) and may wish to do so on
remand. At least one court has noted that the costs permitted for “court appointed experts” under
§ 1920(6) extend beyond experts appointed under Evidence Rule 706. See Gaddis v. United States,
381 F.3d 444, 456–57 (5th Cir. 2004) (en banc). Should the appellees seek to impose these costs
on Sams on remand, the district court of course remains free to take whatever course the law
permits. We offer the following thoughts about the question—non-binding, non-exhaustive, not-
even-rising-to-the-level-of-dicta—only to avoid the impression that the grounds on which we based
our decision today intimate that the Fifth Circuit’s Gaddis decision is beyond second guessing.
First. In 1975, when Congress enacted the Federal Rules of Evidence, see Pub. L. No. 93-
595, 88 Stat. 1926 (1975), it included Rule 706—entitled “Court Appointed Experts”—within the
rules. Three years later, Congress amended § 1920 by adding paragraph six and its reference to
“court appointed experts.” See Pub. L. No. 95-539, 92 Stat. 2040 (1978). This chronology offers
one suggestion that Congress meant the costs referred to in § 1920(6) to be the costs associated with
experts appointed by the courts under Rule 706. To this day, indeed, Rule 706 and § 1920(6) remain
the only two instances in which a federal rule or statute refers to “court appointed experts.”
Second. The complementary relationship between § 1920(6) and Rule 706 goes beyond the
rule’s title. Rule 706(b) provides that court-appointed experts are “entitled to reasonable
compensation in whatever sum the court may allow.” This compensation, the rule adds, “shall be
paid by the parties in such proportion and at such time as the court directs, and thereafter charged
in like manner as other costs.” Id. (emphasis added). By adding “court appointed experts” to
§ 1920(6) in 1978, Congress appeared to make express what Rule 706 had suggested—that the
compensation of court-appointed experts represents a taxable cost under Rule 54(d).
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A like parallel exists between the provision for costs of special interpretation services in
§1920(6) and another federal statute. Congress enacted § 1920(6) in 1978 as part of the Court
Interpreters Act, which included 28 U.S.C. § 1828—a statute that sets up “a program for the
provision of special interpretation services in criminal actions and in civil actions initiated by the
United States.” 28 U.S.C. § 1828(a). Section 1828 also provides that, when such services are used
at trial, the court “may order that all or part of the expenses shall be apportioned between or among
the parties or shall be taxed as costs in a civil action.” Id. § 1828(c). As with court appointed
experts, § 1920(6) complements this provision by listing “costs of special interpretation services
under section 1828 of this title” as taxable costs. Congress thus appears to have followed a common
practice for court appointed experts and special interpretation services by enacting procedures for
their use and compensation, then expressly identifying this type of compensation as a taxable cost
under § 1920.
Third. The legislative history suggests a linkage between Rule 706 and § 1920(6). The
House committee report accompanying the statute expressly links it to Rule 706, stating that the new
section “makes express reference to the taxation of the compensation of a court appointed expert,
as permitted by Rule 706 of the Federal Rules of Evidence.” H.R. Rep. No. 95-1687, at *13, 1978
U.S.C.C.A.N. 4652, 4664.
Fourth. To the extent Congress meant to link § 1920(6) with Rule 706, it is clear that Rule
706 covers court-appointed expert witnesses. The text of Rule 706 refers to expert witnesses, and
we have interpreted the provision to extend only to such witnesses and not other classes of
individuals who could be deemed “experts.” See Reed v. Cleveland Bd. of Educ., 607 F.2d 737, 746
(6th Cir. 1979).
Fifth. Even if Rule 706 does not define the floor and ceiling of costs awardable under
§ 1920(6) for “court appointed experts,” as Gaddis maintains, the state law plaintiffs and attorneys
general are only halfway home. They still must proffer a reasonable interpretation of “court
appointed experts” under § 1920(6) that extends to settlement administrators. The broad theory that
the statute covers the costs for all specialized services provided in a “court appointed” capacity may
prove too much. If true, it would make superfluous other provisions. Court reporters and special
masters, for example, both use expertise to assist the court, and both are appointed by the court. See
28 U.S.C. § 753(a); Fed. R. Civ. P. 53(a). And the compensation of both is specifically provided
for elsewhere: court reporters by § 1920 itself, see 28 U.S.C. § 1920(2); and special masters by Rule
53(h). See, e.g., Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23, 35 (2003) (“A
statutory interpretation that renders another statute superfluous is of course to be avoided.”); see also
Crawford Fitting, 482 U.S. at 444 (noting that Congress wished to “impose rigid controls on cost-
shifting in federal courts”).
Sixth. Gaddis does not stand alone. Other courts have reached a different conclusion. See
Nat’l Org. for the Reform of Marijuana Laws v. Mullen, 828 F.2d 536, 545 n.7 (9th Cir. 1987)
(noting that “the words ‘court appointed experts’ in 28 U.S.C. § 1920(6) refer only to expert
witnesses”); Hall v. Baxter Healthcare Corp., 947 F. Supp. 1387, 1393 n.9 (D. Or. 1996) (“Because
[the court] did not appoint the experts [technical advisors] under Rule 706, their fees are not ‘costs’
that may be awarded to the prevailing party under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920(6).”);
Kansas ex rel. Stephan v. Deffenbaugh Indus., Inc., 154 F.R.D. 269, 270 (D. Kan. 1994) (holding
that “[a]lthough the [court-appointed] mediator may be an ‘expert in the law,’ he or she is not a Rule
706 expert witness whose costs are taxable under § 1920(6)”).
IV.
For these reasons, we reverse the district court’s order taxing Ball with settlement
administration expenses incurred by Rust Consulting.