Ninth Circuit So Holds in 2-1 Decision; Dissent Thinks Majority Decision Allows Recovery of Non-Taxable Costs as Attorney’s Fees in Most Fee-Shifting Statutes.
The next case is an interesting one, provoking a 2-1 decision on an important issue: when are non-taxable costs awardable as attorney’s fees under federal fee-shifting statutes. The question did not get an undivided answer, as a recent Ninth Circuit decision shows.
In Grove v. Wells Fargo Financial California, Inc., Case No. 08-56964 (9th Cir. May 20, 2010) (for publication), a 2-1 Ninth Circuit panel potentially held that $6,770.60 in non-taxable costs (cost of postage, faxes, travel, mediation services, and deposition video conferencing services—items that are not specified taxable costs) might well be “attorney’s fees” under the Fair Credit Reporting Act, relying on decisions such as Missouri v. Jenkins, 491 U.S. 274, 285 (1989) and numerous other circuit decisions construing similar language in federal fee-shifting statutes. The case was remanded for the district court to determine if the non-taxable costs were recoverable because they would normally be included in the fee billed by lawyers in the prevailing community.
Circuit Judge Rymer, in dissent, thought the majority decision was too broad in nature, requiring the federal court of appeals to determine whether Congress intended recovery of non-taxable costs under FCRA. She seemed to suggest that the test adopted by the majority was not narrow enough, meaning that “attorney’s fees” language in all federal fee-shifting statutes would sweep non-taxable costs within its scope if the majority perspective was followed.
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