Marx v. General Revenue Corp. ( 2013 )

(Slip Opinion) OCTOBER TERM, 2012 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
MARX v. GENERAL REVENUE CORP.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE TENTH CIRCUIT
No. 11–1175. Argued November 7, 2012—Decided February 26, 2013
Petitioner Marx filed suit, alleging that General Revenue Corporation
(GRC) violated the Fair Debt Collection Practices Act (FDCPA) by
harassing and falsely threatening her in order to collect on a debt.
The District Court ruled against Marx and awarded GRC costs pur-
suant to Federal Rule of Civil Procedure (FRCP) 54(d)(1), which gives
district courts discretion to award costs to prevailing defendants
“[u]nless a federal statute . . . provides otherwise.” Marx sought to
vacate the award, arguing that the court’s discretion under Rule
54(d)(1) was displaced by 15 U. S. C. §1692k(a)(3), which provides, in
pertinent part, that “[o]n a finding by the court that an action under
this section was brought in bad faith and for the purpose of harass-
ment, the court may award to the defendant attorney’s fees reasona-
ble in relation to the work expended and costs.” The District Court
rejected Marx’s argument. The Tenth Circuit affirmed, in pertinent
part, agreeing that costs are allowed under the Rule and concluding
that nothing in the statute’s text, history, or purpose indicates that it
was meant to displace the Rule.
Held: Section §1692k(a)(3) is not contrary to, and, thus, does not dis-
place a district court’s discretion to award costs under, Rule 54(d)(1).
Pp. 4–16.
(a) Rule 54(d)(1) gives courts discretion to award costs to prevailing
parties, but this discretion can be displaced by a federal statute or
FRCP that “provides otherwise,” i.e., is “contrary” to Rule 54(d)(1).
Contrary to the argument of Marx and the United States, as amicus,
language of the original 1937 version of the Rule does not suggest
that any “express provision” for costs should displace Rule 54(d)(1),
regardless of whether it is contrary to the Rule. Pp. 4–7.
(b) Section 1692k(a)(3)’s language and context demonstrate that
2 MARX v. GENERAL REVENUE CORP.
Syllabus
the provision is not contrary to Rule 54(d)(1). Pp. 7–15.
(1) GRC argues that since §1692k(a)(3) does not address whether
costs may be awarded in an FDCPA case brought in good faith, it
does not set forth a standard that is contrary to the Rule and there-
fore does not displace the presumption that a court has discretion to
award costs. Marx and the United States concede that the statute
does not expressly limit a court’s discretion to award costs under the
Rule, but argue that it does so by negative implication. They claim
that unless §1692k(a)(3) sets forth the exclusive basis on which to
award costs, the phrase “and costs” would be superfluous with Rule
54(d)(1). And the United States also argues that §1692k(a)(3)’s more
specific cost statute displaces Rule 54(d)(1)’s more general rule.
Pp. 7–9.
(2) The argument of Marx and the United States depends criti-
cally on whether §1692k(a)(3)’s allowance of costs creates a negative
implication that costs are unavailable in any other circumstances.
The expressio unius canon that they invoke does not apply “unless it
is fair to suppose that Congress considered the unnamed possibility
and meant to say no to it,” Barnhart v. Peabody Coal Co., 537 U. S.
149, 168, and can be overcome by “contrary indications that adopting
a particular rule or statute was probably not meant to signal any ex-
clusion,” United States v. Vonn, 535 U. S. 55, 65. Here, context indi-
cates that Congress did not intend §1692k(a)(3) to foreclose courts
from awarding costs under the Rule. First, under the American Rule,
each litigant generally pays his own attorney’s fees, but the Court
has long recognized that federal courts have inherent power to award
attorney’s fees in a narrow set of circumstances, e.g., when a party
brings an action in bad faith. The statute is thus best read as codify-
ing a court’s pre-existing authority to award both attorney’s fees and
costs. Next, §1692k(a)(3)’s second sentence must be understood in
light of its first, which provides an award of attorney’s fees and costs,
but to prevailing plaintiffs. By adding “and costs” to the second sen-
tence, Congress foreclosed the argument that defendants can only re-
cover attorney’s fees when plaintiffs bring an action in bad faith and
removed any doubt that defendants may recover costs as well as at-
torney’s fees in such cases. Finally, §1692k(a)(3)’s language sharply
contrasts with that of other statutes in which Congress has placed
conditions on awarding costs to prevailing defendants. See, e.g., 28
U. S. C. §1928. Pp. 9–12.
(3) Even assuming that their surplusage argument is correct, the
canon against surplusage is not absolute. First, the canon “assists
only where a competing interpretation gives effect to every clause
and word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership, 564
U. S. ___, ___. Here, no interpretation of §1692k(a)(3) gives effect to
Cite as: 568 U. S. ____ (2013) 3
Syllabus
every word. Second, redundancy is not unusual in statutes address-
ing costs. See, e.g., 12 U. S. C. §2607(d)(5). Finally, the canon is
strongest when an interpretation would render superfluous another
part of the same statutory scheme. Because §1692k(a)(3) is not part
of Rule 54(d)(1), the force of this canon is diminished. Pp. 13–14.
(4) Lastly, contrary to the United States’ claim that specific cost-
shifting standards displace general ones, the context of the statute
indicates that Congress was simply confirming the background pre-
sumption that courts may award to defendants attorney’s fees and
costs when the plaintiff brings an action in bad faith. Because Marx
did not bring this suit in bad faith, the specific provision is not appli-
cable. Pp. 14–15.
668 F. 3d 1174, affirmed.
THOMAS, J., delivered the opinion of the Court, in which ROBERTS,
C. J., and SCALIA, KENNEDY, GINSBURG, BREYER, and ALITO, JJ., joined.
SOTOMAYOR, J., filed a dissenting opinion, in which KAGAN, J., joined.
Cite as: 568 U. S. ____ (2013) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order
that corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1175
_________________
OLIVEA MARX, PETITIONER v. GENERAL REVENUE
CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 26, 2013]
JUSTICE THOMAS delivered the opinion of the Court.
Federal Rule of Civil Procedure 54(d)(1) gives district
courts discretion to award costs to prevailing defendants
“[u]nless a federal statute . . . provides otherwise.” The
Fair Debt Collection Practices Act (FDCPA), 91 Stat. 881,
15 U. S. C. §1692k(a)(3), provides that “[o]n a finding by
the court that an action under this section was brought
in bad faith and for the purpose of harassment, the court
may award to the defendant attorney’s fees reasonable in
relation to the work expended and costs.” This case pre-
sents the question whether §1692k(a)(3) “provides other-
wise” than Rule 54(d)(1). We conclude that §1692k(a)(3)
does not “provid[e] otherwise,” and thus a district court
may award costs to prevailing defendants in FDCPA cases
without finding that the plaintiff brought the case in bad
faith and for the purpose of harassment.
I
Petitioner Olivea Marx defaulted on a student loan
guaranteed by EdFund, a division of the California Stu-
dent Aid Commission. In September 2008, EdFund hired
respondent General Revenue Corporation (GRC) to collect
2 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
the debt. One month later, Marx filed an FDCPA en-
forcement action against GRC.1 Marx alleged that GRC
had violated the FDCPA by harassing her with phone calls
several times a day and falsely threatening to garnish up
to 50% of her wages and to take the money she owed
directly from her bank account. Shortly after the com-
plaint was filed, GRC made an offer of judgment under
Federal Rule of Civil Procedure 68 to pay Marx $1,500,
plus reasonable attorney’s fees and costs, to settle any
claims she had against it. Marx did not respond to the
offer. She subsequently amended her complaint to add
a claim that GRC unlawfully sent a fax to her workplace
that requested information about her employment status.
Following a 1-day bench trial, the District Court found
that Marx had failed to prove any violation of the FDCPA.
As the prevailing party, GRC submitted a bill of costs
seeking $7,779.16 in witness fees, witness travel expenses,
and deposition transcript fees. The court disallowed sev-
eral items of costs and, pursuant to Federal Rule of Civil
Procedure 54(d)(1), ordered Marx to pay GRC $4,543.03.
Marx filed a motion to vacate the award of costs, arguing
that the court lacked authority to award costs under Rules
54(d)(1) and 68(d) because 15 U. S. C. §1692k(a)(3) sets
forth the exclusive basis for awarding costs in FDCPA
cases.2 Section 1692k(a)(3) provides, in relevant part: “On
——————
1 The FDCPA is a consumer protection statute that prohibits certain
abusive, deceptive, and unfair debt collection practices. See 15 U. S. C.
§1692. The FDCPA’s private-enforcement provision, §1692k, author-
izes any aggrieved person to recover damages from “any debt collector
who fails to comply with any provision” of the FDCPA. §1692k(a).
2 Under Rule 68(d), if a defendant makes a settlement offer, and the
plaintiff rejects it and later obtains a judgment that is less favorable
than the one offered her, the plaintiff must pay the costs incurred by
the defendant after the offer was made. See Fed. Rule Civ. Proc. 68(d)
(“If the judgment that the offeree finally obtains is not more favorable
than the unaccepted offer, the offeree must pay the costs incurred after
the offer was made”).
Cite as: 568 U. S. ____ (2013) 3
Opinion of the Court
a finding by the court that an action under this section
was brought in bad faith and for the purpose of harass-
ment, the court may award to the defendant attorney’s
fees reasonable in relation to the work expended and costs.”
Marx argued that because the court had not found that
she brought the case in bad faith and for the purpose
of harassment, GRC was not entitled to costs. The Dis-
trict Court rejected Marx’s argument, concluding that
§1692k(a)(3) does not displace a court’s discretion to award
costs under Rule 54(d)(1) and that costs should also be
awarded under Rule 68(d).
The Tenth Circuit affirmed but agreed only with part
of the District Court’s reasoning. In particular, the court
disagreed that costs were allowed under Rule 68(d). 668
F. 3d 1174, 1182 (2011). It explained that “Rule 68 applies
only where the district court enters judgment in favor of
a plaintiff ” for less than the amount of the settlement offer
and not where the plaintiff loses outright. Ibid. (citing
Delta Air Lines, Inc. v. August, 450 U. S. 346, 352 (1981)).
Because the District Court had not entered judgment in
favor of Marx, the court concluded that costs were not
allowed under Rule 68(d). 668 F. 3d, at 1182. Neverthe-
less, the court found that costs were allowed under Rule
54(d)(1), which grants district courts discretion to award
costs to prevailing parties unless a federal statute or the
Federal Rules of Civil Procedure provide otherwise. Id., at
1178, 1182. After describing the “venerable” presumption
that prevailing parties are entitled to costs, id., at 1179,
the court concluded that nothing in the text, history, or
purpose of §1692k(a)(3) indicated that it was meant to
displace Rule 54(d)(1), id., at 1178–1182. Judge Lucero
dissented, arguing that “[t]he only sensible reading of
[§1692k(a)(3)] is that the district court may only award
costs to a defendant” upon finding that the action was
brought in bad faith and for the purpose of harassment
and that to read it otherwise rendered the phrase “and
4 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
costs” superfluous. Id., at 1187 (emphasis in original).
We granted certiorari, 566 U. S. ___ (2012), to resolve a
conflict among the Circuits regarding whether a prevailing
defendant in an FDCPA case may be awarded costs where
the lawsuit was not brought in bad faith and for the pur-
pose of harassment. Compare 668 F. 3d, at 1182 (case
below), with Rouse v. Law Offices of Rory Clark, 603 F. 3d
699, 701 (CA9 2010). We now affirm the judgment of the
Tenth Circuit.
II
As in all statutory construction cases, we “ ‘assum[e]
that the ordinary meaning of [the statutory] language
accurately expresses the legislative purpose.’ ” Hardt v. Re-
liance Standard Life Ins. Co., 560 U. S. ___, ___ (2010)
(slip op., at 8) (quoting Gross v. FBL Financial Services,
Inc., 557 U. S. 167, 175 (2009) (alteration in original)). In
this case, we must construe both Rule 54(d)(1) and
§1692k(a)(3) and assess the relationship between them.
A
Rule 54(d)(1) is straightforward. It provides, in relevant
part: “Unless a federal statute, these rules, or a court or-
der provides otherwise, costs—other than attorney’s fees—
should be allowed to the prevailing party.”
As the Tenth Circuit correctly recognized, Rule 54(d)(1)
codifies a venerable presumption that prevailing parties
are entitled to costs.3 Notwithstanding this presumption,
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3 Prior to the adoption of the federal rules, prevailing parties were
entitled to costs as of right in actions at law while courts had discretion
to award costs in equity proceedings. See Ex parte Peterson, 253 U. S.
300, 317–318 (1920) (“While in equity proceedings the allowance and
imposition of costs is, unless controlled by statute or rule of court, a
matter of discretion, it has been uniformly held that in actions at law
the prevailing party is entitled to costs as of right, except in those few
cases where by express statutory provision or by established principles
costs are denied” (citation omitted)); Mansfield, C. & L. M. R. Co. v.
Cite as: 568 U. S. ____ (2013) 5
Opinion of the Court
the word “should” makes clear that the decision whether
to award costs ultimately lies within the sound discretion
of the district court. See Taniguchi v. Kan Pacific Saipan,
Ltd., 566 U. S. ___, ___ (2012) (slip op., at 4) (“Federal
Rule of Civil Procedure 54(d) gives courts the discretion
to award costs to prevailing parties”). Rule 54(d)(1) also
makes clear, however, that this discretion can be displaced
by a federal statute or a Federal Rule of Civil Procedure
that “provides otherwise.”
A statute “provides otherwise” than Rule 54(d)(1) if it is
“contrary” to the Rule. See 10 J. Moore, Moore’s Federal
Practice §54.101[1][c], p. 54–159 (3d ed. 2012) (hereinafter
10 Moore’s). Because the Rule grants district courts dis-
cretion to award costs, a statute is contrary to the Rule if
it limits that discretion. A statute may limit a court’s dis-
cretion in several ways, and it need not expressly state
that it is displacing Rule 54(d)(1) to do so. For instance,
a statute providing that “plaintiffs shall not be liable for
costs” is contrary to Rule 54(d)(1) because it precludes a
court from awarding costs to prevailing defendants. See,
e.g., 7 U. S. C. §18(d)(1) (“The petitioner shall not be liable
for costs in the district court”). Similarly, a statute provid-
ing that plaintiffs may recover costs only under certain
conditions is contrary to Rule 54(d) because it precludes a
court from awarding costs to prevailing plaintiffs when
those conditions have not been satisfied. See, e.g., 28
U. S. C. §1928 (“[N]o costs shall be included in such judg-
ment, unless the proper disclaimer has been filed in the
United States Patent and Trademark Office”).
Importantly, not all statutes that provide for costs are
contrary to Rule 54(d)(1). A statute providing that “the
court may award costs to the prevailing party,” for exam-
——————
Swan, 111 U. S. 379, 387 (1884) (“[B]y the long established practice and
universally recognized rule of the common law, in actions at law, the
prevailing party is entitled to recover a judgment for costs . . . ”).
6 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
ple, is not contrary to the Rule because it does not limit a
court’s discretion. See 10 Moore’s §54.101[1][c], at 54–159
(“A number of statutes state simply that the court may
award costs in its discretion. Such a provision is not con-
trary to Rule 54(d)(1) and does not displace the court’s
discretion under the Rule”).
Marx and the United States as amicus curiae suggest
that any statute that specifically provides for costs dis-
places Rule 54(d)(1), regardless of whether it is contrary to
the Rule. Brief for Petitioner 17; Brief for United States
as Amicus Curiae 11–12 (hereinafter Brief for United
States). The United States relies on the original 1937
version of Rule 54(d)(1), which provided, “ ‘Except when
express provision therefor is made either in a statute of
the United States or in these rules, costs shall be allowed
as of course to the prevailing party unless the court oth-
erwise directs.’ ” Id., at 12 (quoting Rule). Though the
Rules Committee updated the language of Rule 54(d)(1) in
2007, the change was “stylistic only.” Advisory Commit-
tee’s Notes, 28 U. S. C. App., p. 734 (2006 ed., Supp. V).
Accordingly, the United States asserts that any “express
provision” for costs should displace Rule 54(d)(1).
We are not persuaded, however, that the original ver-
sion of Rule 54(d) should be interpreted as Marx and the
United States suggest. The original language was meant
to ensure that Rule 54(d) did not displace existing costs
provisions that were contrary to the Rule. Under the prior
language, statutes that simply permitted a court to award
costs did not displace the Rule. See 6 J. Moore, Moore’s
Federal Practice §54.71[1], p. 54–304 (2d ed. 1996)
(“[W]hen permissive language is used [in a statute regard-
ing costs] the district court may, pursuant to Rule 54(d),
exercise a sound discretion relative to the allowance of
costs”). Rather, statutes had to set forth a standard for
awarding costs that was different from Rule 54(d)(1) in
order to displace the Rule. See Friedman v. Ganassi, 853
Cite as: 568 U. S. ____ (2013) 7
Opinion of the Court
F. 2d 207, 210 (CA3 1988) (holding that 15 U. S. C. §77k(e)
is not an “express provision” under Rule 54(d) because it
does not provide an “alternative standard” for awarding
taxable costs). The original version of Rule 54(d) is con-
sistent with our conclusion that a statute must be contrary
to Rule 54(d)(1) in order to displace it.4
B
We now turn to whether §1692k(a)(3) is contrary to Rule
54(d)(1). The language of §1692k(a)(3) and the context
surrounding it persuade us that it is not.
1
The second sentence of §1692k(a)(3) provides: “On a
finding by the court that an action under this section was
——————
4 The dissent provides no stable definition of “provides otherwise.”
First, it argues that a statute “provides otherwise” if it is “different”
from Rule 54(d)(1). Post, at 2 (opinion of SOTOMAYOR, J.). That inter-
pretation renders the Rule meaningless because every statute is “dif-
ferent” insofar as it is not an exact copy of the Rule. Next, it argues
that a statute “provides otherwise” if it is an “ ‘express provision’
relating to costs.” Post, at 2–3. Under that view, a statute providing
that “the court may award costs to the prevailing party” would “provide
otherwise.” We do not think such a statute provides otherwise—it
provides “same-wise,” and the treatise on which the dissent relies
supports our view. See 10 C. Wright, A. Miller, & M. Kane, Federal
Practice and Procedure §2670, p. 258 (3d ed. 1998 and Supp. 2012)
(“[Statutes that] are permissive in character . . . are not inconsistent
with the discretion given the district court by Rule 54(d)”). Finally,
the dissent seems to implicitly accept that “otherwise” means “to the
contrary” in the course of arguing that a doctor’s instruction to take
medication “ ‘in the morning’ ” would supersede an instruction on the
medication label to “ ‘take [it] twice a day unless otherwise directed,’ ”
because the patient would understand the doctor’s advice to mean that
he should take the medicine “once a day, each morning.” Post, at 4. If
the patient understands the doctor to mean “once a day, each morning,”
we agree that such advice would “provide otherwise,” because the
doctor’s order would be “contrary” to the label’s instruction. For the
reasons set forth in Part II–B, however, we are not convinced that
§1692k(a)(3) is “contrary” to Rule 54(d)(1).
8 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
brought in bad faith and for the purpose of harassment,
the court may award to the defendant attorney’s fees
reasonable in relation to the work expended and costs.”5
GRC contends that the statute does not address whether
costs may be awarded in this case—where the plaintiff
brought the case in good faith—and thus it does not set
forth a standard for awarding costs that is contrary to
Rule 54(d)(1). In its view, Congress intended §1692k(a)(3)
to deter plaintiffs from bringing nuisance lawsuits. It,
therefore, expressly provided that when plaintiffs bring an
action in bad faith and for the purpose of harassment, the
court may award attorney’s fees and costs to the defend-
ant. The statute does address this type of case—i.e., cases
in which the plaintiff brings the action in bad faith and
for the purpose of harassment. But it is silent where bad
faith and purpose of harassment are absent, and silence
does not displace the background rule that a court has
discretion to award costs.
Marx and the United States take the contrary view.
They concede that the language does not expressly limit
a court’s discretion to award costs under Rule 54(d)(1),
Brief for Petitioner 10; Brief for United States 19, but
argue that it does so by negative implication. Invoking the
expressio unius canon of statutory construction, they
contend that by specifying that a court may award attor-
ney’s fees and costs when an action is brought in bad faith
and for the purpose of harassment, Congress intended to
preclude a court from awarding fees and costs when bad
faith and purpose of harassment are absent. They further
argue that unless §1692k(a)(3) sets forth the exclusive
——————
5 It is undisputed that GRC is not entitled to costs under §1692k(a)(3)
because the District Court did not find that Marx brought this action in
bad faith. But Rule 54(d)(1) independently authorizes district courts to
award costs to prevailing parties. The question in this case is not
whether costs are allowed under §1692k(a)(3) but whether §1692k(a)(3)
precludes an award of costs under Rule 54(d)(1).
Cite as: 568 U. S. ____ (2013) 9
Opinion of the Court
basis on which a court may award costs, the phrase “and
costs” would be superfluous. According to this argument,
Congress would have had no reason to specify that a court
may award costs when a plaintiff brings an action in
bad faith if it could have nevertheless awarded costs under
Rule 54(d)(1). Finally, the United States argues that
§1692k(a)(3) is a more specific cost statute that displaces
Rule 54(d)(1)’s more general rule.
The context surrounding §1692k(a)(3) persuades us that
GRC’s interpretation is correct.
2
The argument of Marx and the United States depends
critically on whether §1692k(a)(3)’s allowance of costs
creates a negative implication that costs are unavailable
in any other circumstances. The force of any negative
implication, however, depends on context. We have long
held that the expressio unius canon does not apply “unless
it is fair to suppose that Congress considered the unnamed
possibility and meant to say no to it,” Barnhart v. Peabody
Coal Co., 537 U. S. 149, 168 (2003), and that the canon
can be overcome by “contrary indications that adopting a
particular rule or statute was probably not meant to signal
any exclusion,” United States v. Vonn, 535 U. S. 55, 65
(2002). In this case, context persuades us that Congress
did not intend §1692k(a)(3) to foreclose courts from award-
ing costs under Rule 54(d)(1).
First, the background presumptions governing attorney’s
fees and costs are a highly relevant contextual feature.
As already explained, under Rule 54(d)(1) a prevailing
party is entitled to recover costs from the losing party
unless a federal statute, the Federal Rules of Civil Proce-
dure, or a court order “provides otherwise.” The opposite
presumption exists with respect to attorney’s fees. Under
the “bedrock principle known as the ‘ “American Rule,” ’ ”
“[e]ach litigant pays his own attorney’s fees, win or lose,
10 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
unless a statute or contract provides otherwise.” Hardt,
560 U. S., at ___ (slip op., at 9) (quoting Ruckelshaus v.
Sierra Club, 463 U. S. 680, 683 (1983)). Notwithstanding
the American Rule, however, we have long recognized that
federal courts have inherent power to award attorney’s
fees in a narrow set of circumstances, including when a
party brings an action in bad faith. See Chambers v.
NASCO, Inc., 501 U. S. 32, 45–46 (1991) (explaining that
a court has inherent power to award attorney’s fees to a
party whose litigation efforts directly benefit others, to
sanction the willful disobedience of a court order, and to
sanction a party who has acted in bad faith, vexatiously,
wantonly, or for oppressive reasons); Alyeska Pipeline
Service Co. v. Wilderness Society, 421 U. S. 240, 257–259
(1975) (same).
It is undisputed that §1692k(a)(3) leaves the back-
ground rules for attorney’s fees intact. The statute pro-
vides that when the plaintiff brings an action in bad
faith, the court may award attorney’s fees to the defendant.
But, as noted, a court has inherent power to award fees
based on a litigant’s bad faith even without §1692k(a)(3).
See Chambers, supra, at 45–46. Because §1692k(a)(3)
codifies the background rule for attorney’s fees, it is dubi-
ous to infer congressional intent to override the back-
ground rule with respect to costs. The statute is best read
as codifying a court’s pre-existing authority to award both
attorney’s fees and costs.6
Next, the second sentence of §1692k(a)(3) must be un-
derstood in light of the sentence that precedes it.7 The
——————
6 Indeed, had Congress intended §1692k(a)(3) to foreclose a court’s
discretion to award costs, it could not have chosen a more circuitous
way to do so. The statute sets forth the circumstances in which a court
“may” award costs. But under Marx’s and the United States’ view, the
only consequence of the statute is to set forth the circumstances in
which it may not award costs.
7 Section 1692k(a) provides:
Cite as: 568 U. S. ____ (2013) 11
Opinion of the Court
first sentence of §1692k(a)(3) provides that defendants
who violate the FDCPA are liable for the plaintiff ’s attor-
ney’s fees and costs. The second sentence of §1692k(a)(3)
similarly provides that plaintiffs who bring an action in
bad faith and for the purpose of harassment may be liable
for the defendant’s fees and costs.
If Congress had excluded “and costs” in the second sen-
tence, plaintiffs might have argued that the expression of
costs in the first sentence and the exclusion of costs in
the second meant that defendants could only recover
attorney’s fees when plaintiffs bring an action in bad faith.
By adding “and costs” to the second sentence, Congress
foreclosed that argument, thereby removing any doubt
that defendants may recover costs as well as attorney’s
fees when plaintiffs bring suits in bad faith. See Ali v.
Federal Bureau of Prisons, 552 U. S. 214, 226 (2008) (ex-
plaining that a phrase is not superfluous if used to “re-
move . . . doubt” about an issue); Fort Stewart Schools v.
FLRA, 495 U. S. 641, 646 (1990) (explaining that “techni-
cally unnecessary” examples may have been “inserted out
——————
“Except as otherwise provided by this section, any debt collector who
fails to comply with any provision of this subchapter with respect to
any person is liable to such person in an amount equal to the sum of—
“(1) any actual damages sustained by such person as a result of such
failure;
“(2)(A) in the case of any action by an individual, such additional
damages as the court may allow, but not exceeding $1,000; or
“(B) in the case of a class action, (i) such amount for each named
plaintiff as could be recovered under subparagraph (A), and (ii) such
amount as the court may allow for all other class members, without
regard to a minimum individual recovery, not to exceed the lesser of
$500,000 or 1 per centum of the net worth of the debt collector; and
“(3) in the case of any successful action to enforce the foregoing
liability, the costs of the action, together with a reasonable attorney’s
fee as determined by the court. On a finding by the court that an action
under this section was brought in bad faith and for the purpose of
harassment, the court may award to the defendant attorney’s fees
reasonable in relation to the work expended and costs.”
12 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
of an abundance of caution”). The fact that there might
have been a negative implication that costs are precluded,
depending on whether Congress included or excluded the
phrase “and costs,” weighs against giving effect to any
implied limitation.
Finally, the language in §1692k(a)(3) sharply contrasts
with other statutes in which Congress has placed condi-
tions on awarding costs to prevailing defendants. See, e.g.,
28 U. S. C. §1928 (“[N]o costs shall be included in such
judgment, unless the proper disclaimer has been filed in
the United States Patent and Trademark Office prior to
the commencement of the action” (emphasis added)); 42
U. S. C. §1988(b) (“[I]n any action brought against a judi-
cial officer . . . such officer shall not be held liable for any
costs . . . unless such action was clearly in excess of such
officer’s jurisdiction” (emphasis added)).
Although Congress need not use explicit language to
limit a court’s discretion under Rule 54(d)(1), its use of
explicit language in other statutes cautions against infer-
ring a limitation in §1692k(a)(3). These statutes confirm
that Congress knows how to limit a court’s discretion
under Rule 54(d)(1) when it so desires. See Small v. United
States, 544 U. S. 385, 398 (2005) (THOMAS, J., dissent-
ing) (explaining that “Congress’ explicit use of [language]
in other provisions shows that it specifies such restrictions
when it wants to do so”). Had Congress intended the
second sentence of §1692k(a)(3) to displace Rule 54(d)(1),
it could have easily done so by using the word “only” be-
fore setting forth the condition “[o]n a finding by the court
that an action . . . was brought in bad faith and for the
purpose of harassment . . . .”8
——————
8 Marx also suggests that §1692k(a)(3) is similar to the Pipeline
Safety Act, 49 U. S. C. §60121(b), which provides: “The court may award
costs to a prevailing defendant when the action is unreasonable, frivo-
lous, or meritless.” We have never had occasion to interpret §60121(b)
and its interaction with Rule 54(d)(1).
Cite as: 568 U. S. ____ (2013) 13
Opinion of the Court
3
As the above discussion suggests, we also are not per-
suaded by Marx’s objection that our interpretation renders
the phrase “and costs” superfluous. As noted, supra, at 11,
the phrase “and costs” would not be superfluous if Con-
gress included it to remove doubt that defendants may
recover costs when plaintiffs bring suits in bad faith. But
even assuming that our interpretation renders the phrase
“and costs” superfluous, that would not alter our conclu-
sion. The canon against surplusage is not an absolute
rule, see Arlington Central School Dist. Bd. of Ed. v. Mur-
phy, 548 U. S. 291, 299, n. 1 (2006) (“While it is generally
presumed that statutes do not contain surplusage, in-
stances of surplusage are not unknown”); Connecticut Nat.
Bank v. Germain, 503 U. S. 249, 253 (1992) (“Redundan-
cies across statutes are not unusual events in drafting
. . . ”), and it has considerably less force in this case.
First, the canon against surplusage “assists only where
a competing interpretation gives effect to every clause and
word of a statute.” Microsoft Corp. v. i4i Ltd. Partnership,
564 U. S. ___, ___ (2011) (slip op., at 12) (internal quota-
tion marks omitted). But, in this case, no interpretation of
§1692k(a)(3) gives effect to every word. Both Marx and
the United States admit that a court has inherent power
to award attorney’s fees to a defendant when the plaintiff
brings an action in bad faith. Because there was, conse-
quently, no need for Congress to specify that courts have
this power, §1692k(a)(3) is superfluous insofar as it ad-
dresses attorney’s fees. In light of this redundancy, we are
not overly concerned that the reference to costs may be
redundant as well.
Second, redundancy is “hardly unusual” in statutes
addressing costs. See id., at ___ (slip op., at 13). Numer-
ous statutes overlap with Rule 54(d)(1). See, e.g., 12
U. S. C. §2607(d)(5) (“[T]he court may award to the pre-
vailing party the court costs of the action”); §5565(b) (2006
14 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
ed., Supp. V) (“the [Consumer Financial Protection] Bu-
reau . . . may recover its costs in connection with prosecut-
ing such action if [it] . . . is the prevailing party in the
action”); 15 U. S. C. §6104(d) (2006 ed.) (“The court . . .
may award costs of suit and reasonable fees for attorneys
and expert witnesses to the prevailing party”); §7706(f )(4)
(“In the case of any successful action . . . the court, in its
discretion, may award the costs of the action”); §7805(b)(3)
(“[T]he court may award to the prevailing party costs”);
§8131(2) (2006 ed., Supp. V) (“The court may also, in its
discretion, award costs and attorneys fees to the prevail-
ing party”); 29 U. S. C. §431(c) (2006 ed.) (“The court . . .
may, in its discretion . . . allow a reasonable attorney’s fee
to be paid by the defendant, and costs of the action”); 42
U. S. C. §3612(p) (“[T]he court . . . in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee
and costs”); §3613(c)(2) (“[T]he court, in its discretion, may
allow the prevailing party . . . a reasonable attorney’s fee
and costs”); 47 U. S. C. §551(f)(2) (“[T]he court may award
. . . other litigation costs reasonably incurred”).
Finally, the canon against surplusage is strongest when
an interpretation would render superfluous another part
of the same statutory scheme. Cf. United States v. Jica-
rilla Apache Nation, 564 U. S. ___, ___ (2011) (slip op., at
22) (“ ‘As our cases have noted in the past, we are hesitant
to adopt an interpretation of a congressional enactment
which renders superfluous another portion of that same
law’ ” (quoting Mackey v. Lanier Collection Agency &
Service, Inc., 486 U. S. 825, 837 (1988))). Because
§1692k(a)(3) is not part of Rule 54(d)(1), the force of this
canon is diminished.
4
Lastly, the United States contends that §1692k(a)(3)
“establishes explicit cost-shifting standards that displace
Rule 54(d)(1)’s more general default standard.” Brief for
Cite as: 568 U. S. ____ (2013) 15
Opinion of the Court
United States 17; see also EC Term of Years Trust v.
United States, 550 U. S. 429, 433 (2007) (“ ‘[A] precisely
drawn, detailed statute pre-empts more general reme-
dies’ ” (quoting Brown v. GSA, 425 U. S. 820, 834 (1976))).
Were we to accept the argument that §1692k(a)(3) has a
negative implication, this argument might be persuasive.
But the context of §1692k(a)(3) indicates that Congress
was simply confirming the background rule that courts
may award to defendants attorney’s fees and costs when
the plaintiff brings an action in bad faith. The statute
speaks to one type of case—the case of the bad-faith and
harassing plaintiff. Because Marx did not bring this suit
in bad faith, this case does not “fal[l] within the ambit of
the more specific provision.” Brief for United States 13;
see also RadLAX Gateway Hotel, LLC v. Amalgamated
Bank, 566 U. S. ___, ___ (2012) (slip op., at 9) (“When the
conduct at issue falls within the scope of both provisions,
the specific presumptively governs . . .” (emphasis in origi-
nal)).9 Accordingly, this canon is inapplicable.
III
Because we conclude that the second sentence of
§1692k(a)(3) is not contrary to Rule 54(d)(1), and, thus,
——————
9 Marx, the United States, and GRC also spar over the purpose of
§1692k(a)(3). Brief for Petitioner 14–16; Brief for United States 21–28;
Reply Brief 11–14; Brief for Respondent 30–43. Marx and the United
States contend that Congress intended to limit a court’s discretion to
award costs to prevailing defendants because FDCPA plaintiffs are
often poor and may be deterred from challenging unlawful debt collec-
tion practices by the possibility of being held liable for the defendant’s
costs. This purposive argument cannot overcome the language and
context of §1692k(a)(3), but even if it could, we find it unpersuasive.
Rule 54(d)(1) does not require courts to award costs to prevailing
defendants. District courts may appropriately consider an FDCPA
plaintiff’s indigency in deciding whether to award costs. See Badillo v.
Central Steel & Wire Co., 717 F. 2d 1160, 1165 (CA7 1983) (“[I]t is
within the discretion of the district court to consider a plaintiff’s indi-
gency in denying costs under Rule 54(d)”).
16 MARX v. GENERAL REVENUE CORP.
Opinion of the Court
does not displace a district court’s discretion to award
costs under the Rule, we need not address GRC’s alterna-
tive argument that costs were required under Rule 68.
The judgment of the Court of Appeals is affirmed.
It is so ordered.
Cite as: 568 U. S. ____ (2013) 1
SOTOMAYOR, J., dissenting
SUPREME COURT OF THE UNITED STATES
_________________
No. 11–1175
_________________
OLIVEA MARX, PETITIONER v. GENERAL REVENUE
CORPORATION
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE TENTH CIRCUIT
[February 26, 2013]
JUSTICE SOTOMAYOR, with whom JUSTICE KAGAN joins,
dissenting.
Federal Rule of Civil Procedure 54(d)(1) is a default
standard that grants district courts discretion to award
litigation costs to a prevailing party. This default, how-
ever, gives way when a federal statute includes a costs
provision that “provides otherwise.” The Fair Debt Collection
Practices Act (FDCPA), 91 Stat. 874, 15 U. S. C. §1692et seq., contains a costs provision, §1692k(a)(3), and it
“provides otherwise.” That is apparent from the statute’s
plain language, which limits a court’s discretion to award
costs to prevailing defendants to cases “brought in bad
faith and for the purpose of harassment.” In reaching the
opposite conclusion, the Court ignores the plain meaning
of both the FDCPA and Rule 54(d)(1) and renders the
statutory language at issue in this case meaningless. I
respectfully dissent.
I
The majority correctly recognizes, see ante, at 4, the
fundamental principle of statutory construction that we
begin “with the language of the statute itself.” United
States v. Ron Pair Enterprises, Inc., 489 U. S. 235, 241
(1989); Ingalls Shipbuilding, Inc. v. Director, Office of
Workers’ Compensation Programs, 519 U. S. 248, 255
2 MARX v. GENERAL REVENUE CORP.
SOTOMAYOR, J., dissenting
(1997); Caminetti v. United States, 242 U. S. 470, 485
(1917). We presume that Congress “means in a statute
what it says there,” Connecticut Nat. Bank v. Germain,
503 U. S. 249, 254 (1992), and “where . . . the statute’s
language is plain, the sole function of the courts is to
enforce it according to its terms.” Ron Pair, 489 U. S., at
241 (internal quotation marks omitted). This basic tenet
is the appropriate starting point for interpreting both Rule
54(d)(1) and §1692k(a)(3). After invoking this principle,
however, the majority casts it aside entirely in interpret-
ing the statute and the Rule.
A
Rule 54(d)(1) states, as relevant here, that “[u]nless a
federal statute . . . provides otherwise, costs—other than
attorney’s fees—should be allowed to the prevailing
party.” The first question is what it means for a statute
to “provid[e] otherwise” than Rule 54(d)(1).
Because the phrase “provides otherwise” is not defined
in the Federal Rules of Civil Procedure, we look to its
ordinary meaning. Asgrow Seed Co. v. Winterboer, 513
U. S. 179, 187 (1995). In common usage, to “provide oth-
erwise” means to “make a . . . stipulation” that is “differ-
en[t].” Webster’s Third New International Dictionary
1598, 1827 (2002) (Webster’s Third) (defining “provide”
and “otherwise,” respectively); see Random House Diction-
ary of the English Language 1372, 1556 (2d ed. 1987)
(Random House) (“to arrange for or stipulate” “[i]n another
manner”); 10 Oxford English Dictionary 984 (2d ed. 1989)
(Oxford Dictionary); 12 id., at 713 (“to stipulate” “[i]n
another way . . . ; in a different manner”). This reading of
the plain text is confirmed by the original 1937 codifica-
tion of the Rule, which made clear that any “express pro-
vision” relating to costs in a statute is sufficient to displace
Cite as: 568 U. S. ____ (2013) 3
SOTOMAYOR, J., dissenting
the default.1
Accordingly, to displace Rule 54(d)(1), a federal statute
need only address costs in a way different from, but not
necessarily inconsistent with, the default.2 The reason is
straightforward. If Congress has enacted a provision with
respect to costs in a statute, there is no longer any need
for the default, so it gives way. This design of the Rule is
sensible, because many statutes contain specific costs
provisions. 10 Moore’s Federal Practice §54.101[1][c], p.
54–160 (3d ed. 2012) (noting that such statutes “are far
too numerous to list comprehensively”). Rule 54(d)(1) is
therefore consistent with the canon of statutory interpre-
tation that “a precisely drawn, detailed statute pre-empts
more general remedies.” Hinck v. United States, 550 U. S.
501, 506 (2007); Crawford Fitting Co. v. J. T. Gibbons,
Inc., 482 U. S. 437, 445 (1987); United States v. Erika,
Inc., 456 U. S. 201, 208 (1982).
While purporting to interpret the “ordinary meaning” of
Rule 54(d)(1), ante, at 4, the majority immediately aban-
dons the ordinary meaning. The majority concludes that a
statute provides otherwise for purposes of Rule 54(d)(1)
only if it is “contrary” to the default. Ante, at 5. But the
——————
1 The original codification of the Rule provided that “[e]xcept when
express provision therefor is made either in a statute of the United
States or in these rules, costs shall be allowed as of course to the
prevailing party unless the court otherwise directs.” Ante, at 6 (quoting
the Rule; emphasis added; internal quotation marks omitted). The
language in the Rule was later revised to its current form in 2007, but
as the majority acknowledges, the Rules Committee indicated the
changes were “ ‘stylistic only.’ ” Ibid. (quoting Advisory Committee’s
Notes, 28 U. S. C. App., p. 734 (2006 ed., Supp. V)).
2 See 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Proce-
dure §2665, p. 200 (3d ed. 1998 and Supp. 2012) (hereinafter Wright &
Miller) (Rule 54 “provides that ordinarily the prevailing party shall be
allowed costs other than attorney’s fees unless . . . some other provision
for costs is made by a federal statute or the civil rules” (emphasis
added)).
4 MARX v. GENERAL REVENUE CORP.
SOTOMAYOR, J., dissenting
majority does not cite even a single dictionary definition
in support of that reading, despite the oft-cited principle
that a definition widely reflected in dictionaries generally
governs over other possible meanings.3 Lacking any dic-
tionary support for its interpretation, the majority relies
instead upon a treatise published nearly 60 years after the
Rule’s adoption. See ante, 6–7 (citing 6 J. Moore, Moore’s
Federal Practice, p. 54–304 (2d ed. 1996)).
“Otherwise” means “different.” Webster’s Third 1518;
see supra, at 2–3. The majority’s preferred term of art,
“contrary,” sets a higher bar; it signifies “the opposite,”
or “a proposition, fact, or condition incompatible with an-
other.” Webster’s Third 495 (emphasis added). See also
American Heritage Dictionary of the English Language
399 (5th ed. 2011) (“Opposed, as in character or purpose”);
3 Oxford Dictionary 844 (“Opposed in nature or tendency;
diametrically different, extremely unlike”); Random House
442 (“[O]pposite in nature or character; diametrically or
mutually opposed”).
Indeed, the majority’s reading does not square with the
everyday meaning of “otherwise.” Consider, for example, a
medication labeled with the instruction, “take twice a day
unless otherwise directed.” If a doctor advises her patient
to take the medicine “in the morning,” the patient would
understand her to mean that he should take the medicine
once a day, each morning. Although the instruction to
take the medication in the morning is not incompatible
with taking it twice a day—it could be taken in the even-
ing as well—an ordinary English speaker would interpret
“otherwise” to mean that the doctor’s more specific in-
——————
3 See, e.g., MCI Telecommunications Corp. v. American Telephone &
Telegraph Co., 512 U. S. 218, 225 (1994) (opinion for the Court by
SCALIA, J.) (rejecting the argument that an alternative definition should
control the meaning of “modify” where “[v]irtually every dictionary we
are aware of says that ‘to modify’ means to change moderately or in
minor fashion”).
Cite as: 568 U. S. ____ (2013) 5
SOTOMAYOR, J., dissenting
structions entirely supersede what is printed on the bottle.
Rule 54(d)(1) is just the same: Its default is supplanted
whenever Congress provides more specific instructions,
not only when they are diametrically opposed to it.
B
1
Thus, the straightforward question in this case is
whether §1692k(a)(3) implements a “different” standard
with respect to costs than Rule 54(d)(1), and so “provides
otherwise.” As relevant, §1692k(a)(3) states: “On a finding
by the court that an action under this section was brought
in bad faith and for the purpose of harassment, the court
may award to the defendant attorney’s fees reasonable in
relation to the work expended and costs.”
It is readily apparent that this provision is different
from the default of Rule 54(d)(1). In §1692k(a)(3), Con-
gress described with specificity a single circumstance in
which costs may be awarded. Far from merely restating a
district court’s discretion to award costs, this provision
imposes a prerequisite to the exercise of that discretion: a
finding by the court that an action was brought in bad
faith and for the purpose of harassment.
Because the text is plain, there is no need to proceed
any further. Even so, relevant canons of statutory inter-
pretation lend added support to reading §1692k(a)(3) as
having a negative implication. That reading accords with
the expressio unius, exclusio alterius canon, which in-
structs that when Congress includes one possibility in a
statute, it excludes another by implication. See Chevron
U. S. A. Inc. v. Echazabal, 536 U. S. 73, 80–81 (2002).
This rule reinforces what the text makes clear. By limit-
ing a court’s discretion to award costs to cases brought in
bad faith or for the purpose of harassment, Congress
6 MARX v. GENERAL REVENUE CORP.
SOTOMAYOR, J., dissenting
foreclosed the award of costs in other circumstances.4
Petitioner’s interpretation of the statute is also strongly
favored by the rule that statutes should be read to avoid
superfluity. Under this “most basic of interpretative
canons, . . . ‘ “[a] statute should be constructed so that
effect is given to all of its provisions, so that no part will be
inoperative or superfluous, void or insignificant.” ’ ” Corley
v. United States, 556 U. S. 303, 314 (2009) (quoting Hibbs
v. Winn, 542 U. S. 88, 101 (2004)). Respondent’s reading,
as it mostly acknowledges, renders the entire sentence
meaningless because it reiterates powers that federal
courts already possess with respect to both costs and
attorney’s fees. See Brief for Respondent 22–24.
The majority rejects this argument, citing the rule that
this canon “ ‘assists only where a competing interpretation
gives effect to every clause and word of a statute.’ ” Ante,
at 13 (quoting Microsoft Corp. v. i4i Ltd. Partnership, 564
U. S. ___, ___ (2011) (slip op., at 12)). In its view, neither
of the available interpretations can eliminate superfluity
because the attorney’s fees provision is redundant under
any reading. Ante, at 13. But the canon against super-
fluity surely counsels against an interpretation that renders
the entire provision at issue superfluous when a compet-
ing interpretation would at least render part of the provi-
sion meaningful. Nor does the majority’s observation that
redundancy is “ ‘hardly unusual,’ ” ante, at 14, in provi-
sions relating to costs make the canon inapplicable. While
——————
4 The majority suggests that this canon does not apply to §1692k(a)(3)
because it only aids where “ ‘it is fair to suppose that Congress consid-
ered the unnamed possibility and meant to say no to it.’ ” Ante, at 9
(quoting Barnhart v. Peabody Coal Co., 537 U. S. 149, 168 (2003)). The
best evidence of congressional intent, however, is the statutory text
that Congress enacted. West Virginia Univ. Hospitals, Inc. v. Casey,
499 U. S. 83, 98 (1991). And here, the plain language of §1692k(a)(3)
makes it clear that Congress meant to foreclose other possible mean-
ings. See supra, at 5.
Cite as: 568 U. S. ____ (2013) 7
SOTOMAYOR, J., dissenting
Congress sometimes drafts redundant language with
respect to costs, Congress did not do so in §1692(a)(3).5
Instead, it drafted specific language that permits a court
to award costs only on the satisfaction of a condition.
Interpreting §1692k(1)(3) as having a negative implica-
tion is consistent with our construction of another statute
that includes similar language. In Cooper Industries, Inc.
v. Aviall Services, Inc., 543 U. S. 157, 166 (2004) (opinion
for the Court by THOMAS, J.), we considered a provision in
the Comprehensive Environmental Response, Compensa-
tion, and Liability Act of 1980, 42 U. S. C. §9613(f)(1) that
provided: “[a]ny person may seek contribution . . . during
. . . any civil action under section 9606 of this title” (em-
phasis added). We rejected the argument that the word
“may” indicated that “during a civil action” was one but
not the exclusive circumstance in which the right of con-
tribution was available. 543 U. S., at 166. We instead
adopted the natural reading of the text, holding that a
party’s ability to seek contribution was limited by the
phrase “during any civil action” and that contribution was
only available while a lawsuit is pending. Ibid. The same
logic applies here, because §1692k(a)(3) imposes a closely
analogous condition on a court’s discretion to award costs.
2
The first sentence of §1692k(a)(3) underscores that
Congress implemented a different rule than Rule 54(d)(1).
That sentence provides that a debt collector who violates
the FDCPA is “liable to” a prevailing plaintiff for “the
——————
5 See, e.g., 15 U. S. C. § 6104(d) (Telemarketing and Consumer Fraud
and Abuse Prevention Act) (“The court . . . may award costs of suit and
reasonable fees for attorneys and expert witnesses to the prevailing
party”); 42 U. S. C. §3613(c)(2) (Fair Housing Act) (“In a civil action . . .
the court, in its discretion, may allow the prevailing party . . . a reason-
able attorney’s fee and costs”); see also 28 U. S. C. §1332(b) (failure to
recover jurisdictional amount).
8 MARX v. GENERAL REVENUE CORP.
SOTOMAYOR, J., dissenting
costs of the action, together with a reasonable attorney’s
fee as determined by the court.” This sentence makes a
losing defendant always liable for the “costs of the action,”
which is a clear departure from the Rule 54(d)(1) discre-
tionary default. Cf. Taniguchi v. Kan Pacific Saipan, Ltd.,
566 U. S. ___, ___ (2012) (slip op., at 4). Because Congress
deviated from Rule 54(d)(1) in the first sentence of
§1692k(a)(3), the most reasonable reading is that the
sentence that immediately follows, which states the rule
for prevailing defendants, takes a similar path.
The majority believes that its reading of the costs provi-
sion follows from the first sentence as well, but for a dif-
ferent reason. Ante, at 11–12. It suggests that if Congress
had not included costs in the second sentence, a plaintiff
might have been able to argue that the inclusion of costs
in the first sentence and the exclusion of costs in the
second indicated that defendants could recover only fees
when an action is brought in bad faith. The majority then
speculates that Congress included costs in the second
sentence to foreclose that argument.
The text of the previous sentence makes plain, however,
that the second sentence departs from the Rule 54(d)(1)
default, and the majority offers no evidence in support of
its supposition that Congress intended a different mean-
ing.6 Moreover, I see no basis for invoking potential con-
——————
6 The majority does not explain why its speculation about legislative
intent is more persuasive than the Solicitor General’s view that sad-
dling potential plaintiffs with costs would undermine the FDCPA’s
“ ‘calibrated scheme’ ” of enforcement. Brief for United States as Ami-
cus Curiae 10 (quoting Jerman v. Carlisle, McNellie, Rini, Kramer &
Ulrich, L. P. A., 559 U. S. 573, ___ (2010) (slip op., at 29)). Under the
Solicitor General’s interpretation, because the recoveries in these cases
are not certain to be large, consumers may be deterred from bringing
FDCPA claims if they are faced with the risk of paying costs. See Brief
for United States 21–28. This outcome would thwart Congress’s
expectation that the FDCPA was to be primarily enforced by consum-
ers. Ibid.Cite as: 568 U. S. ____ (2013) 9
SOTOMAYOR, J., dissenting
fusion or indulging in speculation to explain away the
words Congress chose. Ante, at 11–12. Some Members of
the majority have expressed doubt about the relevance of
legislative history, claiming that relying upon it is analo-
gous to “entering a crowded cocktail party and looking . . .
for one’s friends.” Conroy v. Aniskoff, 507 U. S. 511, 519
(1993) (SCALIA, J., concurring in judgment). But speculat-
ing whole cloth about congressional intent, as the majority
does, is surely more problematic. The majority is saved
the trouble of having to look for its friends at the party; it
simply invites them.
II
Reduced to its essence, the majority’s analysis turns on
reading §1692k(a)(3) in the context of what it calls the
“venerable presumption” that prevailing parties are enti-
tled to costs. See ante, at 4. Even if it were appropriate to
consider a background presumption rather than reading
the plain text at issue, the majority’s characterization of
the presumption is at best incomplete.
First, the Court’s suggestion that the presumption
regarding costs is a “venerable” one in American law is an
overstatement. Ibid. It is true, as the majority points out,
that prior to the federal rules, “prevailing parties were
entitled to costs as of right in actions at law while courts
had discretion to award costs in equity proceedings.” Ante,
at 4, n. 3; see Wright & Miller §2665, at 199. But the
doctrine governing costs at law carved out an important
exception for statutory provisions that set forth a differ-
ent rule.7 Where there was such a statute, courts would
——————
7 See Ex parte Peterson, 253 U. S. 300, 318 (1920) (“[I]n actions at law
the prevailing party is entitled to costs as of right . . . , except in those
few cases where by express statutory provision or established principles
costs are denied” (emphasis added)); see also United States v. Tread-
well, 15 F. 532, 534 (SDNY 1883) (“[T]he prevailing party shall be
entitled to costs in all cases, unless otherwise expressly provided by law”
10 MARX v. GENERAL REVENUE CORP.
SOTOMAYOR, J., dissenting
simply apply it. In its assessment of the background princi-
ples underlying its approach, the majority glosses over the
longstanding expectation that Congress often enacts dif-
ferent rules with respect to costs, and when it does, these
rules govern.
Second, Rule 54(d)(1) embraces this long-recognized
exception because it specifies that a statute can displace
its default rule. To repeat, Rule 54(d)(1) merely enacts a
default standard that applies unless, among other things,
a statute or rule “provides otherwise.” Here, for the rea-
sons explained, Congress enacted exactly such a statute.
That is clear from the text, because §1692k(a)(3) condi-
tions the award of costs on the satisfaction of a condition,
and because the previous sentence of the same provision
breaks from the default.
* * *
The plain text of Rule 54(d)(1) and §1692k(a)(3) dictates
the result in this case. Accordingly, I would reverse the
Tenth Circuit and hold that §1692k(a)(3) “provides other-
wise” than Rule 54(d)(1), such that a district court cannot
award costs to a prevailing defendant in an FDCPA action
except upon a showing that the action was brought in bad
faith and for the purpose of harassment. I respectfully
dissent.
——————
(emphasis added, internal quotation marks omitted)); Payne, Costs in
Common Law Actions in the Federal Courts, 21 Va. L. Rev. 397, 430
(1934) (“By reason of the numerous changes in the acts of Congress
respecting costs, many of the older cases are not now safe precedents.
Care should be exercised, therefore, to make an intelligent use of the
cases decided prior to the enactment of various statutes”).