Sixth Circuit Holds Administrative Costs Chargeable Only to Parties and Not their Counsel Under Rule 54(d)(1)

BNA’s United States Law Week reported in Vol. 75, No. 33 (Mar. 6, 2007) on the case In re Cardizem CD Antitrust Litigation, --- F.3d ----, 2007 WL 528044 (6th Cir. Feb. 22, 2007). Here is an excerpt from the case:

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.
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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.

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