Argument preview: Does the federal costs statute authorize an award for document translation costs?
on Feb 9, 2012 at 12:37 pm
Mr. Wolfman gratefully acknowledges the substantial assistance of Tom McSorley, a third-year student at Georgetown University Law Center.
On February 21, the Court will hear oral argument in Taniguchi v. Kan Pacific. At issue in the case is the interpretation of a federal statute that authorizes an award of costs for the services of interpreters to the prevailing party in a lawsuit – specifically, whether the statute extends to costs for translating documents as well as oral translation.
Kouichi Taniguchi, a Japanese baseball player, was visiting a resort in the Northern Mariana Islands when he fell through a wooden deck. He sued Kan Pacific Saipan, Ltd., the operator of the resort. After Kan Pacific won at summary judgment, the district court ordered Taniguchi to pay Kan Pacific the $5,257 it incurred in the case to translate contracts and other documents from Japanese to English. In awarding these costs, the court relied on 28 U.S.C. § 1920(6), which was added to the federal costs statute by the Court Interpreters Act of 1978 and authorizes district courts to tax as costs “compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under [28 U.S.C. § 1828].”
The Ninth Circuit agreed with the district court (and the Sixth Circuit) that the term “interpreters” in the statute includes, as the panel put it, “costs for services required to interpret either live speech or written documents.” On the other hand, the Ninth Circuit panel acknowledged that the Seventh Circuit, in an opinion by Judge Posner, had held that the proper reading of “interpreter” includes only live oral translation and that the “specificity” and “character” of Section 1920 counsels against including the translation of written documents in taxable interpreter costs. The Supreme Court granted Taniguchi’s petition to resolve the split.
Whose dictionary is best?
Both merits briefs open with arguments about the meaning of the word “interpreters” as used in Section 1920(6). Petitioner Taniguchi cites a raft of dictionaries that define “interpreter” as some variation of “one who translates orally,” and even points to a few dictionaries that announce the demise of the broader definition that respondent Kan Pacific urges – one that includes written translation. As you might imagine, Kan Pacific has found several dictionaries that support its position, and it complains that Taniguchi cites mostly abridged dictionaries, with correspondingly abridged definitions (that neglect to include written translation). Kan Pacific notes that Taniguchi has asked the Court to pay attention only to the “esp[ecially]” portion of the Webster’s and Black’s definitions, both of which define “interpreter” as someone who translates from one language to another “esp. orally . . . .” So, the company argues, a complete (“non-esp.”) definition of “interpreter” includes someone who translates written materials.
After exhausting his dictionary-based arguments, Taniguchi explains that the case is about more than the “ordinary meaning” of interpreter. First, he argues that technical and professional terms of art should be defined narrowly to accurately reflect the term’s specific meaning within that context (here, professional interpretation and translation), even if a broader meaning exists for lay people. Second, he observes that there are real differences between interpreters and translators. For example, oral interpreters require social skills to interact with clients on the fly, and they often need to translate back and forth, in two directions, whereas document translation is typically one-way. The argument here is that, given the on-the-ground differences between translators and interpreters, Congress should have used the term “translators” if it wanted to cover translation services. (At this point, amici associations of professional translators and interpreters join the fray, with two supporting Taniguchi and one supporting Kan Pacific. The curious reader can consult those briefs for the details, but suffice it to say that Taniguchi’s amici tell us about the large differences between the translating and interpreting professions, while Kan Pacific’s amici tell us how similar they are.)
Kan Pacific relies heavily on “common usage,” explaining that the terms “interpreter” and “translator” often are used interchangeably. Beyond dictionaries, it cites a variety of newspaper articles and judicial opinions in which the term “interpreter” refers to the translator of written materials, and even a few Supreme Court cases that use “translator” when referring to live oral interpretation. Here, Kan Pacific also confronts the Seventh Circuit’s assertion that, as a matter of common usage, interpreters are speakers and translators are writers, by questioning the logic of that court’s reasoning. The Seventh Circuit confidently exclaimed that no one would call Robert Fagles’s famous translation of the Aeneid an “interpretation,” but – as Kan Pacific points out – no one would call translation of a foreign oral speech into English an “interpretation” either. Yet, even under the Seventh Circuit’s narrower reading of the statute, the person doing the translating (or, perhaps we should say, the “interpreting”) would be an “interpreter” under Section 1920(6).
The Court Interpreters Act
Given the indeterminacy of the textual and “common usage” arguments, the case may turn on broader issues of congressional intent surrounding the enactment of the Court Interpreters Act of 1978 – which, among other things, added subsection (6) to 28 U.S.C. § 1920, as well as Sections 1827 and 1828 to Title 28. As used in those sections – which establish programs for live interpreters in judicial proceedings – no one disputes that “interpreters” are primarily simultaneous oral translators who assist in court proceedings involving witnesses who do not speak English. Taniguchi therefore argues that because Section 1920(6) was enacted at the same time and in the same Act as Sections 1827-28, the term “interpreter” should be accorded the same meaning in all three sections – that is, as including only oral translation services.
Kan Pacific responds that the structure of Section 1920(6) suggests a more permissive reading because it authorizes an award of costs for “court appointed experts,” “interpreters,” and “special interpretation services under [§ 1828].” This construction, the argument goes, indicates that the term “interpreters” is more general than “special” interpretation services; thus, as used in Section 1920(6), that term should not be limited by its meaning in Sections 1827 and 1828. Kan Pacific also offers evidence from documents prepared by the Administrative Office of the U.S. Courts (AO) that suggest that the duties of “interpreters” under Sections 1827 and 1828 go beyond live oral translation and include the translation of documents for entry in evidence. But Taniguchi counters that the most recent AO Guide to Judiciary Policy states that the Court Interpreters Act does not address written translation.
Both sides complicate things by describing a variety of statutes, a rule of civil procedure, and federal agency guidelines to argue that a broad or narrow meaning of “interpreter” is appropriate within the larger context of federal law. For example, Taniguchi points to 15 U.S.C. § 649, which establishes a preference for hiring bilingual employees at the Office of International Trade who can “translate documents” and “interpret conversations,” and 42 U.S.C. § 254b(j)(1), which establishes grants to health centers with large non-English-speaking constituencies for “interpretation” and “translation” services. The point, of course, is that these statutes show that interpretation and translation are distinct activities. In Kan Pacific’s view, these provisions prove nothing. After all, its basic argument is that the terms are flexible and interchangeable, so that Congress’s decision to use both terms could, in Kan Pacific’s view, reflect an “abundance of caution” or recognition that the two terms are somewhat overlapping professional titles, not proof that Congress views the terms as entirely distinct. But here Kan Pacific hedges its bets, explaining that Congress has from time to time used “translator” to refer to someone who does live oral interpretation (or is that “live oral translation”?).
Cost shifting and the common law
The Ninth Circuit apparently did not find the statutory text determinative. Instead, it relied on what it called the “preference for the award of costs to the prevailing party” in Federal Rule of Civil Procedure 54(d), which provides that “[u]nless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” That court reasoned that this preference gives district courts broad discretion in interpreting Section 1920 and taxing reasonable costs necessary for the litigation. Taniguchi disagrees, dusting off the common-law “American Rule” that parties to litigation generally bear their own costs. Taniguchi cites the Court’s landmark ruling in Alyeska Pipeline Service Co. v. Wilderness Society, which generally forbade federal courts from shifting costs (including attorney’s fees) in favor of the prevailing party without statutory authorization, even when doing so would further the underlying purposes of the substantive law. According to Taniguchi, the Ninth Circuit got it exactly backwards: Section 1920 is in derogation of the common law, and Rule 54 can do no more than authorize the award of “costs” that Congress has clearly granted. Thus, according to Taniguchi, if the question whether Section 1920(6) covers translation services is not clearly resolved by the statutory text and other tools of statutory construction, any ambiguity must be resolved against cost shifting.
Siding with the Ninth Circuit, Kan Pacific retorts that Section 1920 does expressly override the common law – that’s its whole point – and the only question is what Section 1920(6) means. In this regard, Kan Pacific points out that federal cost shifting has existed since at least 1853. So, in its view, the doctrine favoring narrow construction of statutes in derogation of the common law has no place here.
I’ll limit my analysis to three points. First, it is difficult to see any important policy ramifications in the outcome of this case. (It’s fun to note here what Kan Pacific said in its brief opposing cert.: “the issue is not especially important, and certainly not exceptionally important,” as Taniguchi had claimed in the petition.) The need to translate written documents arises infrequently in civil litigation, and the cost of translation is a minute component of civil litigation costs generally. Thus, I cannot discern an important policy need for (or against) cost shifting, particularly when compared to other, far more common litigation costs that are not shifted under Section 1920 (travel and depositions expenses, to name two that immediately come to mind).
Taniguchi claims that document translation costs should not be shifted because foreign governments would not want their citizens subjected to those costs. I’ll accept the tacit assertion that litigation involving foreign nationals often demands use of a translator. But is there any reason to think that foreign nationals tend to lose cases in which translation costs are incurred? After all, under Kan Pacific’s regime, when foreign nationals win, they likely will have their translation costs reimbursed.
There’s also no reason to think that Congress would want to encourage litigation involving translation costs. And if it did, we would not want to enact a two-way cost shifter, like Section 1920, because two-way cost shifting is at least as likely to discourage litigation as to encourage it. Rather, if you wanted to encourage litigation, you would enact a regime like 42 U.S.C. § 1988, under which prevailing civil rights plaintiffs are presumptively entitled to their costs, including attorney’s fees (see Newman v. Piggie Park), but prevailing civil rights defendants are not (see Christiansburg Garment Co. v. EEOC). The question here, however, is whether there should be a loser-pays rule for translation costs. To be sure, loser-pays rules tend to make poor and moderate-income plaintiffs less likely to sue, but the real impediment to suit for such prospective plaintiffs would be a loser-pays rule for attorney’s fees. In personal-injury cases like Taniguchi’s, those plaintiffs generally can hire a lawyer on a contingent-fee basis if they have a decent case, but they would likely be discouraged if they were required to pay their opponent’s attorney’s fees if they did not prevail. So, the American Rule, as it applies to fees, brings down barriers to the courthouse in personal-injury cases. But it is very unlikely that the prospect of cost shifting for the small incremental cost of translation services will effectively bar the courthouse door to injury victims. In sum, the question presented here boils down to what “interpreters” means in Section 1920(6), with little or no additional public policy overlay
Second, though I doubt anyone cares, I’ll make a prediction: Taniguchi wins, with the American Rule serving as a tie breaker if needed. My gut tells me that if you asked most judges what the statutory text covers, they would say it covers the cost of oral translation. Then, if you told them about the dispute in this case, they would probably concede that the term could be construed to cover the work of document translators, even if not comfortably. So, what then? Well, the American Rule is a common-law rule, and the federal costs statute, regardless of its long pedigree, is at odds with the common-law rule, which otherwise prevails in the absence of statutory authorization for cost shifting. So, I’m guessing that the Court will demand something approaching a “clear statement” rule from Congress favoring cost shifting, not find it, and rule in favor of Taniguchi.
Third, and finally, why in the world did Taniguchi seek cert.? He had less than $5,300 at stake, not too much more than the costs of printing the briefs and appendices. (Printing the appendices alone cost over $1200.) Taniguchi is not a repeat player: I doubt he’s anticipating another personal injury, and, besides, what’s the likelihood that his next deck plunge will result in another suit demanding document translation? Given that this case seems like a once-in-a-lifetime occurrence for Taniguchi, I can’t help paraphrasing Judge Posner and note that only a lunatic or a fanatic would pay lawyers to brief and argue a Supreme Court case lacking any significant public policy issue that’s worth only five thousand bucks. So, it’s a good guess that Taniguchi’s Supreme Court counsel is acting pro bono. Maybe that’s a fine thing, but only if you think the public good is always served by the resolution of a circuit split. And maybe not. After all, unless Kan Pacific’s counsel also isn’t charging, the Supreme Court litigation has imposed (and continues to impose) significant costs on Kan Pacific, all over a small amount of translation costs. Although Kan Pacific is more likely than Taniguchi to be a repeat player, unless Kan Pacific’s lawyers are working for free, Kan Pacific will be a loser in this case even if it wins. That would be pretty strange, don’t you think?