Opinion analysis: “Compensation of interpreters” does not include document translation

On Monday, the Court decided Taniguchi v. Kan Pacific Saipan, holding that the cost of document translation is not a taxable cost under the federal cost-shifting statute, 28 U.S.C. § 1920. In an opinion by Justice Samuel Alito, the Court ruled – by a vote of six to three – that the Ninth Circuit had it wrong when it ruled that 28 U.S.C. § 1920(6)’s allowance for “compensation of interpreters” includes translation of written documents, and not only what everyone agrees that provision comfortably covers: oral interpretation, such as in-court interpretation of testimony in a language other than English. Interestingly, it wasn’t just the Ninth Circuit that had it wrong. Most federal courts that had addressed the question had ruled that subsection 1920(6) covers document translation, and, as the dissent pointed out, awards for those costs have been commonplace in the district courts.

Justice Alito began by recounting briefly the facts of the case – Taniguchi lost a personal-injury suit to Kan Pacific and was ordered to pay Kan Pacific’s document translation costs – and then framing the question: What does “interpreter” mean in subsection 1920(6)? Because Congress provided no statutory definition, Justice Alito explained, the Court must give the term its “ordinary meaning.”

So, it was time to resolve the parties’ battle of the dictionaries.  And because most lay and legal dictionaries in use in 1978 – when Congress added subsection (6) to the costs statute – defined “interpreter” as a person who translates spoken, as opposed to written, language, the ordinary meaning did not extend to a person who translates written documents.

At this point, Justice Alito took on Kan Pacific’s principal dictionary-based argument: Because Webster’s Third (1976) defined “interpreter” as “one that translates; esp: a person who translates orally for parties conversing in different tongues,” using the sense divider “esp,” one meaning of “interpreter” is someone who translates written documents. Justice Alito did not dispute that indisputable point. Rather, he made a neat counterpoint: that just because “a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense.” This reflects a sensible textualism, and I suspect that this line of the opinion is the one most likely to live on in statutory construction jurisprudence.

It’s worth noting here that Justice Alito did not trash Webster’s Third, as Justice Scalia did at oral argument, when he exclaimed that Webster’s Third is “not a very good dictionary,” in part because it wrongly defines “imply” to mean “infer” and  vice versa. But Justice Alito did something similar. He held, in effect, that the Oxford English Dictionary is a better dictionary!  Because the Oxford English Dictionary is “one of the most authoritative on the English language,” and its 1933 edition recognized that “interpreter” can mean someone who translates documents, but designated that meaning as “obsolete,” Kan Pacific’s goose was fully cooked.  Justice Alito’s “OED holding” will resonate among the lawyers who practice regularly before the Court. From now on, whenever we rush to the dictionaries hoping that they will support our client’s view of the statutory terms – and we’ve all done that many times – we will go first to the OED, praying that it does the trick.

After an analysis of the statutory text, the next step typically is context. And context just made things worse for Kan Pacific. Subsection 1920(6) was added to the federal costs statute by the Court Interpreters Act, and all of its uses of “interpreter” connote someone who translates orally. For instance, one part of that Act directs the courts to use interpreters when a party or witness “speaks only or primarily a language other than the English language.” After perusing all of the Act’s express and implied references to oral translation, the Court then relied on its familiar canon that multiple uses of the same word in the same act generally ought to be accorded the same meaning. (Here, Justice Alito paused to respond to Justice Ginsburg’s dissent, which relied heavily on the federal district courts’ practice of awarding document translation costs. The statutory context, he said, and not what the courts have done, “is a more reliable guide” “about what Congress intended when it added subsection (6).”)

After noting that the Court’s understanding of the ordinary meaning of “interpreter” comported with the technical meaning given it by interpreters and translators, the Court turned to Federal Rule of Civil Procedure 54(d)(1), which says that, presumptively, costs “should be allowed to the prevailing party.” The Ninth Circuit had relied heavily on Rule 54, saying that it creates “a decided preference” for a broad reading of costs under Section 1920. But the Court rightly nixed that argument, noting that Rule 54(d) does not define “costs,” but says only that when costs exist they should presumptively be awarded to the prevailing party. This case, Justice Alito explained, concerned whether one item of expense – document translation – is a cost under Section 1920, and, thus, has nothing to do with Rule 54(d).

Justice Alito added that the Court’s ruling is consistent with Section 1920’s narrow focus – it covers only “relatively minor, incidental expenses” such as clerk and court reporter fees that comprise only “a fraction of expenses borne by litigants” – thus underscoring that Kan Pacific’s position would “stretch” Section 1920’s ordinary meaning. He then wrapped up his opinion by telling Kan Pacific that its “extratexual” and policy-based arguments are “more properly directed at Congress.” No surprise there.

To all of this, I’ll add two points. First, for what it’s worth, I liked Justice Alito’s opinion. It’s clear – see my plain-language translation (pun intended) of the opinion below – logical, and fair. On the latter score, I have noticed that Justice Alito’s opinions generally give the losing party’s plausible arguments a fair hearing, and he does the same for lower court opinions with which he ultimately disagrees. That’s good.

Second, this case turned out to be one in which the oral argument was a good barometer of the outcome. As noted previously, the argument transcript, plus a guess based on the textualist predilections of the silent Justice, indicated that five Justices – Alito, Kagan, Scalia, Thomas, and the Chief Justice – would rule for Taniguchi based on the statute’s text, and that three Justices – Ginsburg, Sotomayor, and Breyer – seemed to side with Kan Pacific because the lower courts had been awarding document translation costs for years. And that’s how it worked out (with Justice Kennedy, whose views were hard to pin down from the transcript, joining the majority).

Plain English Summary

In this case, the Court held that “because the ordinary meaning of ‘interpreter’ is someone who translates orally from one language to another,” … ‘compensation of interpreters’ in [28 U.S.C.] § 1920(6) does not include costs for document translation.” Put even more simply, people who win federal-court lawsuits cannot be reimbursed by the losing party for any of their document translation costs.