TANIGUCHI v. KAN PACIFIC SAIPAN
On November 6, 2006, Kouichi Taniguchi, a Japanese baseball player, visited the Marianas Resort and Spa in the Northern Mariana Islands. During a tour of the resort, Taniguchi fell through a wooden deck. Immediately after the accident, Taniguchi stated that he did not need medical attention. Two weeks later, he informed Kan Pacific Saipan, Ltd., the owner of the resort, that he had sustained injuries, which he claimed resulted in various medical expenses and loss of income.
Taniguchi subsequently brought a diversity lawsuit against Kan Pacific alleging negligence and seeking damages for losses suffered because of the accident. After discovery, the district court awarded summary judgment to Kan Pacific and awarded Kan Pacific litigation costs under 28 U.S.C. § 1920. During litigation, Kan Pacific spent $5,517.20 for the translation of contracts and other documents from Japanese to English. The district court included these costs in the award because it interpreted “compensation of interpreters” in U.S.C. § 1920(6), as including compensation for the translation of documents.
Taniguchi appealed to the U.S. Court of Appeals for the Ninth Circuit, which affirmed the award of $5,517.20 for the document translation. The court denied Taniguchi’s petition for rehearing on May 11, 2011, and Taniguchi subsequently appealed.
Are costs incurred in translating documents “compensation of interpreters” under 28 U.S.C. Section § 1920(6)?
Legal provision: Court Interpreters Act
No. In a 6-3 opinion written by Justice Samuel Alito, the Court held that Section § 1920(6) did not allow the district court to award Kan Pacific the costs of translating documents. Justice Alito described the history of the Court Interpreters Act, focusing on the original amendment adding the costs of compensating interpreters as a separate category of taxable costs that courts could award. Justice Alito noted that “interpreter” was not defined in the act itself or in any other relevant statutory provision.
Justice Alito then looked to the ordinary meaning of the word “interpreter” as defined by dictionaries in 1978, the year § 1920(6) was amended to its current form. He determined that dictionaries generally defined the term as a person who translates oral communication from one language to another. Legal dictionaries used similar definitions. While Webster’s Third New International defined “interpreter” more broadly, its definition specified that the most common meaning was a person who translated orally. Justice Alito also looked to contextual evidence and to references to technical language in the act, concluding that congress intended to limit the term to oral communications.
While the Ninth Circuit reasoned that a broader interpretation was more consistent with Rule 54 of the Federal Rules of Civil Procedure -which gave broad discretion to courts in awarding costs- Justice Alito wrote that this discretion was limited by the costs allowed by congress. He argued that congress may have limited interpretation costs out of a concern about excessive costs to litigants, and that Kan Pacific failed to show that distinguishing translating from interpreting would be a frequent problem for trial courts.
Justice Ruth Bader Ginsburg dissented, joined by Justices Stephen Breyer and Sonia Sotomayor. Justice Ginsburg argued that many dictionaries’ definitions of “interpreter” included the translation of written documents. She pointed out that several federal courts also used similar definitions, and that courts have awarded the costs of translating documents for decades. Justice Ginsburg emphasized the importance of parties’ access to translated documents, and that the line between translated and interpreted communications was not a clear one.
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, Washington, 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
KOUICHI TANIGUCHI, PETITIONER v. KAN PACIFIC SAIPAN, LTD., dba MARIANAS RESORT AND SPA
on writ of certiorari to the united states court of appeals for the ninth circuit
[May 21, 2012]
Justice Alito delivered the opinion of the Court.
The costs that may be awarded to prevailing parties in lawsuits brought in federal court are set forth in 28 U. S. C. §1920. The Court Interpreters Act amended that statute to include “compensation of interpreters.” §1920(6); see also §7, 92Stat. 2044. The question presented in this case is whether “compensation of interpreters” covers the cost of translating documents. Because the ordinary meaning of the word “interpreter” is a person who translates orally from one language to another, we hold that “compensation of interpreters” is limited to the cost of oral translation and does not include the cost of document translation.I
This case arises from a personal injury action brought by petitioner Kouichi Taniguchi, a professional baseball player in Japan, against respondent Kan Pacific Saipan, Ltd., the owner of a resort in the Northern Mariana Islands. Petitioner was injured when his leg broke through a wooden deck during a tour of respondent’s resort property. Initially, petitioner said that he needed no medical attention, but two weeks later, he informed respondent that he had suffered cuts, bruises, and torn ligaments from the accident. Due to these alleged injuries, he claimed damages for medical expenses and for lost income from contracts he was unable to honor. After discovery concluded, both parties moved for summary judgment. The United States District Court for the Northern Mariana Islands granted respondent’s motion on the ground that petitioner offered no evidence that respondent knew of the defective deck or otherwise failed to exercise reasonable care.
In preparing its defense, respondent paid to have various documents translated from Japanese to English. After the District Court granted summary judgment in respondent’s favor, respondent submitted a bill for those costs. Over petitioner’s objection, the District Court awarded the costs to respondent as “compensation of interpreters” under §1920(6). Explaining that interpreter services “cannot be separated into ‘translation’ and ‘interpretation,’ ” App. to Pet. for Cert. 25a, the court held that costs for document translation “fal[l] within the meaning of ‘compensation of an interpreter,’ ” ibid. Finding that it was necessary for respondent to have the documents translated in order to depose petitioner, the court concluded that the translation services were properly taxed as costs.
The United States Court of Appeals for the Ninth Circuit affirmed both the District Court’s grant of summary judgment and its award of costs. The court rejected petitioner’s argument that the cost of document translation services is not recoverable as “compensation of interpreters.” The court explained that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ both according to the dictionary definition and common usage of these terms, which does not always draw precise distinctions between foreign language interpretations involving live speech versus written documents.” 633 F. 3d 1218, 1221 (2011). “More importantly,” the court stressed, this construction of the statute “is more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” Ibid. The court thus concluded that “the prevailing party should be awarded costs for services required to interpret either live speech or written documents into a familiar language, so long as interpretation of the items is necessary to the litigation.” Id., at 1221–1222.
Because there is a split among the Courts of Appeals on this issue, 1 we granted certiorari. 564 U. S. ___ (2011).II A
Although the taxation of costs was not allowed at common law, it was the practice of federal courts in the early years to award costs in the same manner as the courts of the relevant forum State. Alyeska Pipeline Service Co. v. Wilderness Society, 421 U. S. 240 –248 (1975). In 1793, Congress enacted a statute that authorized the awarding of certain costs to prevailing parties based on state law:
“That there be allowed and taxed in the supreme, circuit and district courts of the United States, in favour of the parties obtaining judgments therein, such compensation for their travel and attendance, and for attornies and counsellors’ fees . . . as are allowed in the supreme or superior courts of the respective states.” Act of Mar. 1, 1793, §4, 1Stat. 333.
Although twice reenacted, this provision expired in 1799. Alyeska Pipeline, supra, at 248, n. 19; Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 439 (1987) . Yet even in the absence of express legislative authorization, the practice of referring to state rules for the taxation of costs persisted. See Alyeska Pipeline, 421 U. S., at 250.
Not until 1853 did Congress enact legislation specifying the costs allowable in federal court. Id., at 251. The impetus for a uniform federal rule was largely the consequence of two developments. First, a “great diversity in practice among the courts” had emerged. Ibid. Second, “losing litigants were being unfairly saddled with exorbitant fees for the victor’s attorney.” Ibid. Against this backdrop, Congress passed the 1853 Fee Act, which we have described as a “far-reaching Act specifying in detail the nature and amount of the taxable items of cost in the federal courts.” Id., at 251–252. The substance of this Act was transmitted through the Revised Statutes of 1874 and the Judicial Code of 1911 to the Revised Code of 1948, where it was codified, “without any apparent intent to change the controlling rules,” as 28 U. S. C. §1920. 421 U. S., at 255.
Federal Rule of Civil Procedure 54(d) gives courts the discretion to award costs to prevailing parties. That Rule provides in relevant part: “Unless a federal statute, these rules, or a court order provides otherwise, costs—other than attorney’s fees—should be allowed to the prevailing party.” Rule 54(d)(1). We have held that “§1920 defines the term ‘costs’ as used in Rule 54(d).” Crawford Fitting, 482 U. S., at 441. In so doing, we rejected the view that “the discretion granted by Rule 54(d) is a separate source of power to tax as costs expenses not enumerated in §1920.” Ibid.
As originally configured, §1920 contained five categories of taxable costs: (1) “[f]ees of the clerk and marshal”; (2) “[f]ees of the court reporter for all or any part of the stenographic transcript necessarily obtained for use in the case”; (3) “[f]ees and disbursements for printing and witnesses”; (4) “[f]ees for exemplification and copies of papers necessarily obtained for use in the case”; and (5) “[d]ocket fees under section 1923 of this title.” 62Stat. 955. In 1978, Congress enacted the Court Interpreters Act, which amended §1920 to add a sixth category: “Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.” 28 U. S. C. §1920(6); see also §7, 92Stat. 2044. We are concerned here with this sixth category, specifically the item of taxable costs identified as “compensation of interpreters.”B
To determine whether the item “compensation of interpreters” includes costs for document translation, we must look to the meaning of “interpreter.” That term is not defined in the Court Interpreters Act or in any other relevant statutory provision. When a term goes undefined in a statute, we give the term its ordinary meaning. Asgrow Seed Co. v. Winterboer, 513 U. S. 179, 187 (1995) . The question here is: What is the ordinary meaning of “interpreter”?
Many dictionaries in use when Congress enacted the Court Interpreters Act in 1978 defined “interpreter” as one who translates spoken, as opposed to written, language. The American Heritage Dictionary, for instance, defined the term as “[o]ne who translates orally from one language into another.” American Heritage Dictionary 685 (1978). The Scribner-Bantam English Dictionary defined the related word “interpret” as “to translate orally.” Scribner-Bantam English Dictionary 476 (1977). Similarly, the Random House Dictionary defined the intransitive form of “interpret” as “to translate what is said in a foreign language.” Random House Dictionary of the English Language 744 (1973) (emphasis added). And, notably, the Oxford English Dictionary defined “interpreter” as “[o]ne who translates languages,” but then divided that definition into two senses: “a. [a] translator of books or writings,” which it designated as obsolete, and “b. [o]ne who translates the communications of persons speaking different languages; spec. one whose office it is to do so orally in the presence of the persons; a dragoman.” 5 Oxford English Dictionary 416 (1933); see also Concise Oxford Dictionary of Current English 566 (6th ed. 1976) (“One who interprets; one whose office it is to translate the words of persons speaking different languages, esp. orally in their presence”); Chambers Twentieth Century Dictionary 686 (1973) (“one who translates orally for the benefit of two or more parties speaking different languages: . . . a translator (obs.)”).
Pre-1978 legal dictionaries also generally defined the words “interpreter” and “interpret” in terms of oral translation. The then-current edition of Black’s Law Dictionary, for example, defined “interpreter” as “[a] person sworn at a trial to interpret the evidence of a foreigner . . . to the court,” and it defined “interpret” in relevant part as “to translate orally from one tongue to another.” Black’s Law Dictionary 954, 953 (rev. 4th ed. 1968); see also W. Anderson, A Dictionary of Law 565 (1888) (“One who translates the testimony of witnesses speaking a foreign tongue, for the benefit of the court and jury”); 1 B. Abbott, Dictionary of Terms and Phrases Used in American or English Jurisprudence 639 (1878) (“one who restates the testimony of a witness testifying in a foreign tongue, to the court and jury, in their language”). But see Ballentine’s Law Dictionary 655, 654 (3d ed. 1969) (defining “interpreter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language,” and “interpret” as “to translate from a foreign language”).
Against these authorities, respondent relies almost exclusively on Webster’s Third New International Dictionary (hereinafter Webster’s Third). The version of that dictionary in print when Congress enacted the Court Interpreters Act defined “interpreter” as “one that translates; esp: a person who translates orally for parties conversing in different tongues.” Webster’s Third 1182 (1976). 2 The sense divider esp (for especially) indicates that the most common meaning of the term is one “who translates orally,” but that meaning is subsumed within the more general definition “one that translates.” See 12,000 Words: A Supplement to Webster’s Third 15a (1986) (explaining that esp “is used to introduce the most common meaning included in the more general preceding definition”). For respondent, the general definition suffices to establish that the term “interpreter” ordinarily includes persons who translate the written word. Explaining that “the word ‘interpreter’ can reasonably encompass a ‘translator,’ ” the Court of Appeals reached the same conclusion. 633 F. 3d, at 1221. We disagree.
That a definition is broad enough to encompass one sense of a word does not establish that the word is ordinarily understood in that sense. See Mallard v. United States Dist. Court for Southern Dist. of Iowa, 490 U. S. 296, 301 (1989) (relying on the “most common meaning” and the “ordinary and natural signification” of the word “request,” even though it may sometimes “double for ‘demand’ or ‘command’ ”). The fact that the definition of “interpreter” in Webster’s Third has a sense divider denoting the most common usage suggests that other usages, although acceptable, might not be common or ordinary. It is telling that all the dictionaries cited above defined “interpreter” at the time of the statute’s enactment as including persons who translate orally, but only a handful defined the word broadly enough to encompass translators of written material. See supra, at 5–7. Although the Oxford English Dictionary, one of the most authoritative on the English language, recognized that “interpreter” can mean one who translates writings, it expressly designated that meaning as obsolete. See supra, at 6. Were the meaning of “interpreter” that respondent advocates truly common or ordinary, we would expect to see more support for that meaning. We certainly would not expect to see it designated as obsolete in the Oxford English Dictionary. Any definition of a word that is absent from many dictionaries and is deemed obsolete in others is hardly a common or ordinary meaning.
Based on our survey of the relevant dictionaries, we conclude that the ordinary or common meaning of “interpreter” does not include those who translate writings. Instead, we find that an interpreter is normally understood as one who translates orally from one language to another. This sense of the word is far more natural. As the Seventh Circuit put it: “Robert Fagles made famous translations into English of the Iliad, the Odyssey, and the Aeneid, but no one would refer to him as an English-language ‘interpreter’ of these works.” Extra Equipamentos E Exportação Ltda. v. Case Corp., 541 F. 3d 719, 727 (2008).
To be sure, the word “interpreter” can encompass persons who translate documents, but because that is not the ordinary meaning of the word, it does not control unless the context in which the word appears indicates that it does. Nothing in the Court Interpreters Act or in §1920, however, even hints that Congress intended to go beyond the ordinary meaning of “interpreter” and to embrace the broadest possible meaning that the definition of the word can bear.
If anything, the statutory context suggests the opposite: that the word “interpreter” applies only to those who translate orally. As previously mentioned, Congress enacted §1920(6) as part of the Court Interpreters Act. The main provision of that Act is §2(a), codified in 28 U. S. C. §§1827 and 1828. See 92Stat. 2040–2042. Particularly relevant here is §1827. As it now reads, that statute provides for the establishment of “a program to facilitate the use of certified and otherwise qualified interpreters in judicial proceedings instituted by the United States.” §1827(a). Subsection (d) directs courts to use an interpreter in any criminal or civil action instituted by the United States if a party or witness “speaks only or primarily a language other than the English language” or “suffers from a hearing impairment” “so as to inhibit such party’s comprehension of the proceedings or communication with counsel or the presiding judicial officer, or so as to inhibit such witness’ comprehension of questions and the presentation of such testimony.” §1827(d)(1). 3 As originally enacted, subsection (k) mandated that the “interpretation provided by certified interpreters . . . shall be in the consecutive mode except that the presiding judicial officer . . . may authorize a simultaneous or summary interpretation.” §1827(k) (1976 ed., Supp. II); see also 92Stat. 2042. In its current form, subsection (k) provides that interpretation “shall be in the simultaneous mode for any party . . . and in the consecutive mode for witnesses,” unless the court directs otherwise. The simultaneous, consecutive, and summary modes are all methods of oral interpretation and have nothing to do with the translation of writings. 4 Taken together, these provisions are a strong contextual clue that Congress was dealing only with oral translation in the Court Interpreters Act and that it intended to use the term “interpreter” throughout the Act in its ordinary sense as someone who translates the spoken word. As we have said before, it is a “ ‘normal rule of statutory construction’ that ‘identical words used in different parts of the same act are intended to have the same meaning.’ ” Gustafson v. Alloyd Co., 513 U. S. 561, 570 (1995) (quoting Department of Revenue of Ore. v. ACF Industries, Inc., 510 U. S. 332, 342 (1994) ). 5
The references to technical terminology in the Court Interpreters Act further suggest that Congress used “interpreter” in a technical sense, and it is therefore significant that relevant professional literature draws a line between “interpreters,” who “are used for oral conversations,” and “translators,” who “are used for written communications.” Zazueta, supra n. 4, at 477; see also M. Frankenthaler, Skills for Bilingual Legal Personnel 67 (1982) (“While the translator deals with the written word, the interpreter is concerned with the spoken language”); Brislin, Introduction, in Translation: Applications and Research 1 (R. Brislin ed. 1976) (explaining that when both terms are used together, translation “refers to the processing [of] written input, and interpretation to the processing of oral input” (emphasis deleted)); J. Herbert, Interpreter’s Handbook 1 (2d ed. 1952) (“In the present-day jargon of international organisations, the words translate, translations, translator are used when the immediate result of the work is a written text; and the words interpret, interpreter, interpretation when it is a speech delivered orally”). That Congress specified “interpreters” but not “translators” is yet another signal that it intended to limit §1920(6) to the costs of oral, instead of written, translation. 6
In sum, both the ordinary and technical meanings of “interpreter,” as well as the statutory context in which the word is found, lead to the conclusion that §1920(6) does not apply to translators of written materials. 7C
No other rule of construction compels us to depart from the ordinary meaning of “interpreter.” The Court of Appeals reasoned that a broader meaning is “more compatible with Rule 54 of the Federal Rules of Civil Procedure, which includes a decided preference for the award of costs to the prevailing party.” 633 F. 3d, at 1221. But we have never held that Rule 54(d) creates a presumption of statutory construction in favor of the broadest possible reading of the costs enumerated in §1920. To the contrary, we have made clear that the “discretion granted by Rule 54(d) is not a power to evade” the specific categories of costs set forth by Congress. Crawford Fitting, 482 U. S., at 442. “Rather,” we have said, “it is solely a power to decline to tax, as costs, the items enumerated in §1920.” Ibid. Rule 54(d) thus provides no sound basis for casting aside the ordinary meaning of the various items enumerated in the costs statute, including the ordinary meaning of “interpreter.”
Our decision is in keeping with the narrow scope of taxable costs. “Although ‘costs’ has an everyday meaning synonymous with ‘expenses,’ the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant.” 10 C. Wright, A. Miller, & M. Kane, Federal Practice and Procedure §2666, pp. 202–203 (3d ed. 1998) (hereinafter Wright & Miller). Taxable costs are limited to relatively minor, incidental expenses as is evident from §1920, which lists such items as clerk fees, court reporter fees, expenses for printing and witnesses, expenses for exemplification and copies, docket fees, and compensation of court-appointed experts. Indeed, “the assessment of costs most often is merely a clerical matter that can be done by the court clerk.” Hairline Creations, Inc. v. Kefalas, 664 F. 2d 652, 656 (CA7 1981). Taxable costs are a fraction of the nontaxable expenses borne by litigants for attorneys, experts, consultants, and investigators. It comes as little surprise, therefore, that “costs almost always amount to less than the successful litigant’s total expenses in connection with a lawsuit.” 10 Wright & Miller §2666, at 203. Because taxable costs are limited by statute and are modest in scope, we see no compelling reason to stretch the ordinary meaning of the cost items Congress authorized in §1920.
As for respondent’s extratextual arguments, they are more properly directed at Congress. Respondent contends that documentary evidence is no less important than testimonial evidence and that it would be anomalous to require the losing party to cover translation costs for spoken words but not for written words. Brief for Respondent 20. Respondent also observes that some translation tasks are not entirely oral or entirely written. Id., at 20–24. One task, called “ ‘sight translation,’ ” involves the oral translation of a document. Id., at 21. Another task involves the written translation of speech. Ibid. And a third task, called “ ‘document comparison,’ ” involves comparing documents in the source and target language to verify that the two are identical. Id., at 21–22. Respondent argues that a narrow definition cannot account for these variations and that a bright-line definition of “interpreter” as someone who translates spoken and written words would avoid complication and provide a simple, administrable rule for district courts.
Neither of these arguments convinces us that Congress must have intended to dispense with the ordinary meaning of “interpreter” in §1920(6). First, Congress might have distinguished between oral and written translation out of a concern that requiring losing parties to bear the potentially sizable costs of translating discovery documents, as opposed to the more limited costs of oral testimony, could be too burdensome and possibly unfair, especially for litigants with limited means. Cf. Fleischmann Distilling Corp. v. Maier Brewing Co., 386 U. S. 714, 718 (1967) (noting the argument “that since litigation is at best uncertain one should not be penalized for merely defending or prosecuting a lawsuit, and that the poor might be unjustly discouraged from instituting actions to vindicate their rights if the penalty for losing included the fees of their opponents’ counsel”). Congress might also have concluded that a document translator is more akin to an expert or consultant retained by a party to decipher documentary evidence—like, for instance, a forensic accountant—than to an interpreter whose real-time oral translation services are necessary for communication between litigants, witnesses, and the court. 8
Second, respondent has not shown that any of the hybrid translation/interpretation tasks to which it points actually arise with overwhelming frequency or that the problem of drawing the line between taxable and nontaxable costs in such cases will vex the trial courts. It certainly has not shown that any such problems will be more troublesome than the task of sifting through translated discovery documents to ascertain which can be taxed as necessary to the litigation. In any event, the present case does not present a hybrid situation; it involves purely written translation, which falls outside the tasks performed by an “interpreter” as that term is ordinarily understood.* * *
Because the ordinary meaning of “interpreter” is someone who translates orally from one language to another, we hold that the category “compensation of interpreters” in §1920(6) does not include costs for document translation. We therefore vacate the judgment of the United States Court of Appeals for the Ninth Circuit and remand the case for further proceedings consistent with this opinion.
It is so ordered.
1 Compare BDT Products, Inc. v. Lexmark Int’l, Inc., 405 F. 3d 415, 419 (CA6 2005) (holding that document translation costs are taxable under §1920(6) because the “definition of interpret expressly includes to ‘translate into intelligible or familiar language’ ” (quoting Webster’s Third New International Dictionary 1182 (1981))), with Extra Equipamentos E Exportação Ltda. v. Case Corp., 541 F. 3d 719, 727–728 (CA7 2008) (holding that document translation costs are not taxable under §1920(6) because an interpreter is “normally understood [as] a person who translates living speech from one language to another”).
2 A handful of other contemporaneous dictionaries used a similar formulation. See Funk & Wagnalls New Comprehensive International Dictionary of the English Language 665 (1977) (“One who interprets or translates; specifically, one who serves as oral translator between people speaking different languages”); 1 World Book Dictionary 1103 (C. Barnhart & R. Barnhart eds. 1977) (“a person whose business is translating, especially orally, from a foreign language”); Cassell’s English Dictionary 617 (4th ed. 1969) (“One who interprets, esp. one employed to translate orally to persons speaking a foreign language”).
3 This provision remains substantially the same as it appeared when first enacted. See 28 U. S. C. §1827(d)(1) (1976 ed., Supp. II); see also 92Stat. 2040.
4 The simultaneous mode requires the interpreter “to interpret and to speak contemporaneously with the individual whose communication is being translated.” H. R. Rep. No. 95–1687, p. 8 (1978). The consecutive mode requires the speaker whose communication is being translated to pause so that the interpreter can “convey the testimony given.” Ibid. And the summary mode “allow[s] the interpreter to condense and distill the speech of the speaker.” Ibid.; see generally Zazueta, Attorneys Guide to the Use of Court Interpreters, 8 U. C. D. L. Rev. 471, 477–478 (1975).
5 The dissent agrees that context should help guide our analysis, but instead of looking to the Court Interpreters Act, it looks to “the practice of federal courts both before and after §1920(6)’s enactment.” Post, at 4 (opinion of Ginsburg, J.). The practice of federal courts after the Act’s enactment tells us nothing about what Congress intended at the time of enactment. And federal court practice before the Act under other provisions of §1920 tells us little, if anything, about what Congress intended when it added subsection (6). We think the statutory context in which the word “interpreter” appears is a more reliable guide to its meaning.
6 Some provisions within the United States Code use both “inter-preter” and “translator” together, thus implying that Congress understands the terms to have the distinct meanings described above. See, e.g., 8 U. S. C. §1555(b) (providing that appropriations for the Immigration and Naturalization Service “shall be available for payment of . . . interpreters and translators who are not citizens of the United States”); 28 U. S. C. §530C(b)(1)(I) (providing that Department of Justice funds may be used for “[p]ayment of interpreters and translators who are not citizens of the United States”).
7 Our conclusion is buttressed by respondent’s concession at oral argument that there is no provision in the United States Code where it is clear that the word extends to those who translate documents. Tr. of Oral Arg. 39; see also Brief for Petitioner 32 (“And the Code is wholly devoid of any corresponding definition of ‘interpreter’ extending to the translation of written documents”). As respondent acknowledged, either the word is used in a context that strongly suggests it applies only to oral translation or its meaning is unclear. See Tr. of OralArg. 38.
8 The dissent contends that document translation, no less than oral translation, is essential “to equip the parties to present their case clearly and the court to decide the merits intelligently.” Post, at 5. But a document translator is no more important than an expert or consultant in making sense of otherwise incomprehensible documentary evidence, yet expenses for experts and consultants are generally not taxable as costs. To be sure, forgoing document translation can impair a litigant’s case, but document translation is not indispensable, in the way oral translation is, to the parties’ ability to communicate with each other, with witnesses, and with the court.
SUPREME COURT OF THE UNITED STATES
KOUICHI TANIGUCHI, PETITIONER v. KAN PACIFIC SAIPAN, LTD., dba MARIANAS RESORT AND SPA
on writ of certiorari to the united states court of appeals for the ninth circuit
[May 21, 2012]
Justice Ginsburg, with whom Justice Breyer and Justice Sotomayor join, dissenting.
To be comprehended by the parties, the witnesses, and the court, expression in foreign languages must be translated into English. Congress therefore provided, in 28 U. S. C. §1920(6), that the prevailing party may recoup compensation paid to “interpreters.” The word “interpreters,” the Court emphasizes, commonly refers to translators of oral speech. Ante, at 5–6. But as the Court acknowledges, ante, at 7, and n. 2, “interpreters” is more than occasionally used to encompass those who translate written speech as well. See Webster’s Third New International Dictionary of the English Language 1182 (1976) (hereinafter Webster’s) (defining “interpreter” as “one that translates; esp: a person who translates orally for parties conversing in different tongues”); Black’s Law Dictionary 895 (9th ed. 2009) (defining “interpreter” as a “person who translates, esp. orally, from one language to another”); Ballentine’s Law Dictionary 655 (3d ed. 1969) (defining “interpreter” as “[o]ne who interprets, particularly one who interprets words written or spoken in a foreign language”).
In short, employing the word “interpreters” to include translators of written as well as oral speech, if not “the most common usage,” ante, at 8, is at least an “acceptable” usage, ibid. Moreover, the word “interpret” is generally understood to mean “to explain or tell the meaning of: translate into intelligible or familiar language or terms,” while “translate” commonly means “to turn into one’s own or another language.” Webster’s 1182, 2429. See also Random House Dictionary of the English Language 744, 1505 (1973) (defining the transitive verb “interpret” as, inter alia, “to translate,” and “translate” as “to turn (something written or spoken) from one language into another”).
Notably, several federal district court decisions refer to translators of written documents as “interpreters.” E.g., United States v. Prado-Cervantez, No. 11–40044–11, 2011 WL 4691934, *3 (Kan., Oct. 6, 2011) (“Standby counsel should also be prepared to arrange for interpreters to interpret or translate documents when necessary for defendant.”); Mendoza v. Ring, No. 07–3114, 2008 WL 2959848, *2 (CD Ill., July 30, 2008) (“The interpreter is also directed to translate filings by the plaintiff from Spanish to English. The original and translated versions will be docketed.”). So do a number of state statutes. E.g., Cal. Govt. Code Ann. §26806(a) (West 2008) (“[T]he clerk of the court may employ as many foreign language interpreters as may be necessary . . . to translate documents intended for filing in any civil or criminal action . . . .”).
Most federal courts of appeals confronted with the question have held that costs may be awarded under §1920(6) for the translation of documents necessary to, or in preparation for, litigation. Compare 633 F. 3d 1218, 1220–1222 (CA9 2011); BDT Prods., Inc. v. Lexmark Int’l, Inc., 405 F. 3d 415, 419 (CA6 2005); Slagenweit v. Slagenweit, 63 F. 3d 719, 721 (CA8 1995) (per curiam); and Chore-Time Equip., Inc. v. Cumberland Corp., 713 F. 2d 774, 782 (CA Fed. 1983) (all holding that costs for document translation are covered by §1920(6)), with Extra Equipamentos E Exportação Ltda. v. Case Corp., 541 F. 3d 719, 727–728 (CA7 2008) (costs for document translation are not covered by §1920(6)). See also In re Puerto Rico Elec. Power Auth., 687 F. 2d 501, 506, 510 (CA1 1982) (recognizing that costs of document translation may be reimbursed, without specifying the relevant subsection of §1920); Studiengesellschaft Kohle mbH v. Eastman Kodak Co., 713 F. 2d 128, 133 (CA5 1983) (allowing document translation costs under §1920(4)); Quy v. Air Am., Inc., 667 F. 2d 1059, 1065 (CADC 1981) (allowing “translation costs” under §1920(6)). 1
In practice, federal trial courts have awarded document translation costs in cases spanning several decades. See, e.g., Raffold Process Corp. v. Castanea Paper Co., 25 F. Supp. 593, 594 (WD Pa. 1938). Before the Court Interpreters Act added §1920(6) to the taxation of costs statute in 1978, district courts awarded costs for document translation under §1920(4), which allowed taxation of “[f]ees for exemplification and copies of papers,” 28 U. S. C. §1920(4) (1976 ed.), or under §1920’s predecessor, 28 U. S. C. §830 (1925 ed.). See, e.g., Bennett Chemical Co. v. Atlantic Commodities, Ltd., 24 F. R. D. 200, 204 (SDNY 1959) (§1920(4)); Raffold Process Corp., 25 F. Supp., at 594 (§830). Pre-1978, district courts also awarded costs for oral translation of witness testimony. See, e.g., Kaiser Industries Corp. v. McLouth Steel Corp., 50 F. R. D. 5, 11 (ED Mich. 1970). Nothing in the Court Interpreters Act, a measure intended to expand access to interpretation services, indicates a design to eliminate the availability of costs awards for document translation. See S. Rep. No. 95–569, p. 4 (1977) (hereinafter S. Rep.) (“The committee . . . feels the time has come to provide by statute for the provision of and access to qualified certified interpreters, for a broader spectrum of people than the present law allows.”). Post-1978, rulings awarding document translation costs under §1920(6) indicate the courts’ understanding both that the term “interpreter” can readily encompass oral and written translation, and that Congress did not otherwise instruct. 2 I agree that context should guide the determination whether §1920(b) is most sensibly read to encompass persons who translate documents. See ante, at 8–9. But the context key for me is the practice of federal courts both before and after §1920(6)’s enactment.
The purpose of translation, after all, is to make relevant foreign-language communication accessible to the litigants and the court. See S. Rep., at 1 (The Court Interpreters Act is intended “to insure that all participants in our Federal courts can meaningfully take part.”). Documentary evidence in a foreign language, no less than oral statements, must be translated to equip the parties to present their case clearly and the court to decide the merits intelligently. See, e.g., United States v. Mosquera, 816 F. Supp. 168, 175 (EDNY 1993) (“For a non-English speaking [party] to stand equal with others before the court requires translation [of relevant documents].”); Lockett v. Hellenic Sea Transports, Ltd., 60 F. R. D. 469, 473 (ED Pa. 1973) (“To be understood by counsel for plaintiffs and defendant, as well as for use at trial, the [ship’s] deck log had to be translated [from Greek] into the English language.”). 3 And it is not extraordinary that what documents say, more than what witnesses testify, may make or break a case.
Distinguishing written from oral translation for cost-award purposes, moreover, is an endeavor all the more dubious, for, as the Court acknowledges, ante, at 13, some translation tasks do not fall neatly into one category or the other. An interpreter, for example, may be called upon to “sight translate” a written document, i.e., to convey a written foreign-language document’s content orally in English. R. González, V. Vásquez, & H. Mikkelson, Fundamentals of Court Interpretation: Theory, Policy and Practice 401 (1991) (hereinafter González). In-court sight translation, Taniguchi concedes, counts as “interpretation,” even though it does not involve translating verbal expression. Tr. of Oral Arg. 10. Yet an interpreter’s preparation for in-court sight translation by translating a written document in advance, Taniguchi maintains, does not count as “interpretation.” Ibid. But if the interpreter then reads the prepared written translation aloud in court, that task, in Taniguchi’s view, can be charged as “interpretation,” id., at 11, even though the reading involves no translation of foreign-language expression—written or oral—at all.
Similarly hard to categorize is the common court-interpreter task of listening to a recording in a foreign language, transcribing it, then translating it into English. See González 439. Although this task involves oral foreign-language communication, it does not, Taniguchi contends, qualify as “interpretation,” because it involves “the luxury of multiple playbacks of the tape and the leisure to consult extrinsic linguistic sources.” Reply Brief for Petitioner 9 (internal quotation marks omitted). But sight translation—which Taniguchi concedes may be charged as “interpretation”—may sometimes involve similarly careful linguistic analysis of a written document in advance of a court proceeding. Davis & Hewitt, Lessons in Administering Justice: What Judges Need to Know about the Requirements, Role, and Professional Responsibilities of the Court Interpreter, 1 Harv. Latino L. Rev. 121, 131 (1994).
Taniguchi warns that translation costs can be exorbitant and burdensome to police. Reply Brief 19–22; Tr. of Oral Arg. 20–21. The Court expresses a similar concern. Ante, at 13–14. 4 Current practice in awarding translation costs, however, has shown that district judges are up to the task of confining awards to translation services necessary to present or defeat a claim. See Eastman Kodak Co., 713 F. 2d, at 133 (district court should not award document translation costs “carte blanche,” but must determine whether such costs were necessarily incurred). See also, e.g., Conn v. Zakharov, No. 1:09 CV 0760, 2010 WL 2293133, *3 (ND Ohio, June 4, 2010) (denying translation costs where prevailing party did not demonstrate the costs were necessary); Maker’s Mark Distillery, Inc. v. Diageo North Am., Inc., No. 3:03–CV–93, 2010 WL 2651186, *3 (WD Ky., June 30, 2010) (same); Competitive Technologies v. Fujitsu Ltd., No. C–02–1673, 2006 WL 6338914, *11 (ND Cal., Aug. 23, 2006) (same); Arboireau v. Adidas Salomon AG, No. CV–01–105, 2002 WL 31466564, *6 (Ore., June 14, 2002) (same); Oetiker v. Jurid Werke, GmbH, 104 F. R. D. 389, 393 (DC 1982) (same); Lockett, 60 F. R. D., at 473 (awarding costs for “necessary” translations); Kaiser, 50 F. R. D., at 11–12 (same); Bennett, 24 F. R. D., at 204 (same); Raffold Process Corp., 25 F. Supp., at 594 (same). Courts of appeals, in turn, are capable of reviewing such judgments for abuse of discretion.
In short, §1920(6)’s prescription on “interpreters” is not so clear as to leave no room for interpretation. Given the purpose served by translation and the practice prevailing in district courts, supra, at 3, there is no good reason to exclude from taxable costs payments for placing written words within the grasp of parties, jurors, and judges. I would therefore affirm the judgment of the Ninth Circuit.
1 Translation costs, like other costs recoverable under §1920, may be “denied or limited” if they “were unreasonably incurred or unnecessary to the case.” 10 Moore’s Federal Practice §54.101[b], p. 54–158 (3d ed. 2012).
2 Currently, some federal district courts make the practice of allowing fees for translation of documents explicit in their local rules. See Rule 54–4.8 (CD Cal. 2012) (allowing “[f]ees for translation of documents . . . reasonably necessary to the preparation of the case”); Rule 54.1 (Guam 2011) (same); Rule 54.1(c)(7) (Idaho 2011) (allowing reasonable fee if the “document translated is necessarily filed or admitted in evidence”); Rule 54.7 (MD Pa. 2011) (same); Rule 54.1 (Ariz. 2012) (same); Rule 54.1(b)(4)(e) (SD Cal. 2012) (same); Rule 54.1 (NJ 2011) (same); Rule 54–5(d) (Nev. 2011) (same); Rule 54.2 (NM 2012) (allowing translator’s fee if the translated document is admitted into evidence); Rule 54.1(c)(4) (SDNY 2012) (allowing reasonable fee if translated document “is used or received in evidence”); Rule 54.1(c)(4) (EDNY 2012) (same). See also Rule 54.03(F)(1)(c) (SC 2012) (allowing costs of certain document translations under §1920(4)); Rule 54.1(b)(5) (Del. 2011) (same); Rule 54(c)(3)(i) (Conn. 2011) (same); Misc. Order ¶7, Allowable Items for Taxation of Costs (ND Fla. 2007) (allowing “fee of a competent translator of a non-English document that is filed or admitted into evidence”); Taxation of Costs Guidelines (PR 2009) (allowing fees for translation of documents filed or admitted into evidence), available at http://www.prd.uscourts.gov/courtweb/pdf/taxation_of_costs_guidelines_2007_with_time_computation_amendments.pdf (All Internet materials as visited May 17, 2012, and included in Clerk of Court’s case file); Taxation of Costs (Mass. 2000) (allowing fees “for translation of documents . . . reasonably necessary for trial preparation”), available at http://www.mad.uscourts.gov/resources/pdf/taxation.pdf.
3 Noteworthy, other paragraphs Congress placed in §1920 cover written documents. See 28 U. S. C. §1920(2) (2006 ed., Supp. IV) (“Feesfor printed or electronically recorded transcripts”); §1920(3) (2006 ed.) (“Fees and disbursements for printing and witnesses”); §1920(4) (“Fees for exemplification and the costs of making copies of any [necessary] materials”). Nothing indicates that Congress intended paragraph (6), unlike paragraphs (2)–(4), to apply exclusively to oral communications.
4 The Court also observes that “[t]axable costs are limited to relatively minor, incidental expenses.” Ante, at 12. The tab for unquestionably allowable costs, however, may run high. See, e.g., In re Ricoh Co., Ltd. Patent Litigation, No. C 03–02289, 2012 WL 1499191, *6 (ND Cal., Apr. 26, 2012) (awarding $440,000 in copying costs); Jones v. Halliburton Co., No. 4:07–cv–2719, 2011 WL 4479119, *2 (SD Tex., Sept. 26, 2011) (awarding $57,300 in fees for court-appointed expert). Translation costs, on the other hand, are not inevitably large. See Brief for Respondent 26–27, n. 12 (listing, inter alia, 21 translation cost awards of less than $13,000, of which at least fourteen were less than $3,000).
ORAL ARGUMENT OF MICHAEL S. FRIED ON BEHALF OF THE PETITIONER
Chief Justice John G. Roberts: We will hear argument next in Case 10-1472, Kouichi Taniguchi v. Kan Pacific Saipan, Limited.
Mr. Fried: Mr. Chief Justice, and may it--
please the Court:
Our brief licks -- lists six categories of authority demonstrating that the work of an interpreter under 28 U.S.C. section 1920(6) is limited to spoken communication.
Primary among these is the Court Interpreters Act itself, whose central provisions afford simultaneous or consecutive spoken interpreter services.
Justice Sonia Sotomayor: Can I make sure that I understand the extent of your argument?
Are you saying that it's interpretation, oral interpretation, just in the courtroom?
Mr. Fried: --Well, Justice Sotomayor, I think that it's a -- that there is a textual ambiguity in the statute about the extent of covered spoken interpreter services.
One could argue it either way, and we don't -- I am happy to proceed under either assumption.
But what is clear is that, however far it extends within the area of spoken interpretation, document translation is--
Justice Sonia Sotomayor: I -- I have to say that if you read it the way you do, then what you are suggesting is that for appointed experts, they only get recompensed for the time they're testifying, because that's the only time they spend in court.
Mr. Fried: --Court-appointed experts, Your Honor?
Justice Sonia Sotomayor: Yes.
Mr. Fried: I think the legislative history of that seems to indicate that that provision was actually inserted into 1920(6) for a separate housekeeping reason, because it parallels Rule 706 of the Federal Rules of Evidence, which was a preexisting rule addressing court-appointed experts, and simply put it into the enumeration.
Justice Sonia Sotomayor: But court experts get--
a -- get paid for their prep work.
Mr. Fried: Yes, Your Honor.
I -- I think that -- that that may well be the case.
But I -- I think that the--
Justice Sonia Sotomayor: Could I -- one further question.
Mr. Fried: --Of course.
Justice Sonia Sotomayor: I take all your arguments, but I read the common dictionary and there is no question that the primary meaning of "interpreter" is interpretation of oral languages.
But the dictionary is broad enough to include translation work as well.
Given that the courts for 70 years have been awarding, most of the them -- except for I think the Seventh here, virtually every court over a 70-year period has been awarding translation fees as -- as authorized; why shouldn't that be enough for us?
Mr. Fried: Well--
Justice Sonia Sotomayor: Meaning, if the dictionary term is broad enough and that's what the courts have been doing and the world hasn't crashed, despite one case where a large amount was given -- your adversary points to the fact that most of the translation fees tend to be fairly reasonable -- why should we muck with what works?
Mr. Fried: --Well, Your Honor, I think that--
Justice Sonia Sotomayor: I think I am drawing -- I am drawing from ways that my colleague next to me usually asks a question.
Mr. Fried: --Your Honor, I think the primary reason why the Court should -- should not adopt that is because it's -- it's inconsistent with the text.
Justice Antonin Scalia: It's wrong is your answer, right?
Mr. Fried: Yes, Your Honor.
And -- and it's also worth noting that the courts -- none of the courts of appeals who have adopted this construction of 1920(6) have considered or addressed our primary arguments in this case.
They haven't addressed the uniform professional literature addressing this -- this topic, the dictionaries in their aggregate, the Administrative Office's interpretation of this statute, the consistent congressional distinction between written translation and spoken -- spoken interpretation that runs throughout the code.
Justice Elena Kagan: Just out of curiosity, why do you think that all these courts just took for granted the opposite reading?
Mr. Fried: Well, Your Honor, I'm -- I'm -- I'm not sure that I have a -- a good answer to that.
I -- perhaps that they weren't presented with some of these -- these arguments and didn't have the opportunity to consider them.
Justice Antonin Scalia: Perhaps it was Dr. Johnson's answer when a lady pointed out an error in his dictionary and his answer was:
"Stupidity, madam, sheer stupidity. "
Mr. Fried: I think -- I think, Your Honor, that -- that Kan Pacific disputes very little of -- of our central argument.
Justice Stephen G. Breyer: There are -- there are lots of regions of the country, Puerto Rico for example, where there are vast numbers of documents that have to be translated if you go into Federal court, not necessarily in the Commonwealth court.
That's expensive to people.
And they might have thought for a long time, while that expense won't go away, it's at least better to have it paid by the loser than to have it paid by the winner.
So that's been the common practice.
I don't think that's a foolish approach.
And you can find language in this, which is to go back -- to go back to Justice Sotomayor--
Mr. Fried: --Well, Your Honor, I think that -- again, the -- the best reason to reject that view is because it doesn't make a coherent whole of this statute.
These provisions operate together in a uniform set of -- as a uniform set of policies for addressing a common subject.
And the way they -- these provisions interact in broad strokes that makes perfect sense in our reading is that in the -- in the primary class of cases that motivated the passage of this statute, namely cases brought by the government where there were significant constitutional confrontation clause concerns about criminal defendants not understanding the spoken proceedings, in those core class of cases the Congress elected to pay for spoken interpreter services directly in the first instance.
Now, in the non-core class of cases litigation, private civil litigation, the Congress elected not to pay for these services, but in 1920(6) to facilitate them in the lesser manner of providing that a party that incurred these expenses could recover them at the end of the case if it won.
Justice Stephen G. Breyer: --What do you think of the -- I mean, the First Circuit dealt with this, which deals a lot with Puerto Rico, and it felt that this fell within the idea of fees for exemplification, which is certifying the document.
And in fact, to certify a document that comes into the Federal court in San Juan, you have to have it translated very often.
And so, the translation cost is at least consistent with the idea there of trying to -- you may -- you don't have to -- you may impose the cost on the loser.
Mr. Fried: Well, Justice Breyer, there was actually a specific provision in this bill, in a prior version of this bill that addressed the context of Puerto Rico.
And the significance of that provision is that when the Congress was addressing written translation, which was part of the -- part of that provision, it specifically used the word "translation" to refer to that.
And this just, again, confirms that the usual congressional practice of differentiating between these terms in -- in statutes generally was fully applicable here, that the Congress knew the difference between these terms, used them appropriately, and the fact that having removed that -- that provision from the statute, the statute as passed contains only the words "interpreter" and "interpretation", and no forms of "translate" just again reaffirms that -- that the ordinary meaning of these terms should apply.
Justice Ruth Bader Ginsburg: What of a document that is -- that's read out in open court and the document is a contract in another language, and the interpreter -- the witness presents the document and the interpreter interprets it?
Mr. Fried: Your Honor, the professional literature addresses this as sight interpretation or sight translation, and it's uniformly recognized to be a species of interpretation.
It occurs -- the -- the interpreter speaks aloud in the presence of the audience being communicated to in the course of a spoken proceeding.
Justice Ruth Bader Ginsburg: But what if the -- if the interpreter, being diligent, said, I'm going to have to translate this document in open court, I would like to have it in advance so I can be sure that my translation is going to be accurate, so that in fact the interpreter looks at the document and in in preparation for the trial translates it?
Mr. Fried: Well, Your Honor, I think that the preparatory work that occurred outside of court would not be compensable interpretation work.
But when the -- when the interpreter returned to court and gave the oral interpretation of that document, that would constitute interpretation.
Chief Justice John G. Roberts: But that -- but she's not interpreting it.
She's already got the thing in whatever language, English, I guess.
But I mean, she's not interpreting, she's reading the English translation.
Mr. Fried: That's true, Mr. Chief Justice.
But the key reason why that would constitute interpretation is because the -- the interpreter is speaking aloud, communicating in the course of a spoken conversation to an audience who -- who doesn't speak English or--
Chief Justice John G. Roberts: Oh, I misunderstood the hypothetical, then.
Mr. Fried: --Perhaps I did, Your Honor.
Chief Justice John G. Roberts: I thought it was a situation where you have got a -- a -- a document in -- in, say, French and the person translates it, or interprets it -- I don't want to prejudge the issue -- and -- and then in English and then the person reads the English thing in -- in court.
That's not interpretation at any point, is it?
Mr. Fried: Well, Your Honor, I think that the literature does typically class the in-court oral communication of its content as a form of interpretation.
But any ambiguity on this point really -- really doesn't -- doesn't affect anything in practice.
I mean, any sight interpretation occurs as a brief interval in a larger proceeding.
Justice Anthony Kennedy: Well, is it true that as a matter of common usage, when we are talking about oral testimony in court we often use "interpretation" and "translation" or "interpreter" and "translator" somewhat interchangeably, but when we're talking about rendering a document into a -- into a different language, we generally talk about that as "translation".
This is a matter of common usage.
Do you think that's correct?
Mr. Fried: If I understand Your Honor correctly, yes.
I think that the ordinary meaning of "translate" applies to the context of -- the communication of information in written documents.
And it's -- it's discrete from "interpretation", which -- which is limited to--
Justice Antonin Scalia: Well, you didn't understand the question.
Justice Anthony Kennedy: That wasn't quite my point.
Mr. Fried: --I'm sorry.
Justice Anthony Kennedy: My point was that I think we say -- in fact, in a Supreme Court case, we said in the Hernandez case, when we're talking about oral testimony in Court, we tend to use "translator" or "translate" and "interpreter" and "interpret" somewhat interchangeably.
Is that correct?
Mr. Fried: I apologize, Your Honor.
Yes, you can use the word "translate" generically.
There's no question.
Frequently in court, and I think out of court as well, that some people can use the word "translate" in a manner that doesn't differentiate between modes.
Our point is that -- that double meaning doesn't apply to "interpreter", which has a single narrow meaning limited to spoken communication.
And Kan Pacific's discussion of the dictionaries is limited to a single dictionary, Webster's Third.
The majority of dictionaries categorically exclude document translation from the scope of--
Justice Antonin Scalia: Webster's Third, as I recall, is the dictionary that defines "imply" to mean "infer"--
Mr. Fried: --It does, Your Honor--
Justice Antonin Scalia: --and "infer" to mean "imply".
It's not a very good dictionary.
Mr. Fried: --Well, the Court in the -- in the MCI v. AT&T case did indicate that.
But -- but in any event, the -- on its terms, that definition supports our reading over Kan Pacific's because it does indicate, even as to that dictionary definition, that the most common meaning of the term is the meaning referring to spoken communications.
And this Court frequently looks to the most common meaning for purposes of statutory interpretation, as it did in Mallard in construing the word "request", and in Ramsey in construing the word "envelope".
Justice Sonia Sotomayor: Could we get back to the issue.
In the legislative history of this provision, is there any indication that Congress explicitly rejected translation work from its coverage?
Mr. Fried: I can talk -- there's a -- the text does.
The -- the text--
Justice Sonia Sotomayor: Outside of the text.
Is there a statement by one of the sponsors in the congressional bill?
Mr. Fried: --I'm not -- I'm sorry.
I'm not sure that there's an explicit statement that I'm aware of in the legislative history.
There's a lot of provisions in the legislative history which plainly presuppose that.
And the Congress received professional literature from -- documents from the American Association of Language Specialists.
Justice Sonia Sotomayor: Those are the other provisions that they passed with respect to--
Mr. Fried: Specifically with respect to costs, the Congress -- the House Report alludes to Rule 43(f), which is now 43(d), as a relevant preexisting rule.
And of course, it's undisputed that Rule 43(d)'s cost provision is -- is limited to spoken communication of interpreters.
So there is that in the history as well.
But -- but I think that there's no doubt that under the text of the statute, subsection (k) the modes subsection, which appears at page 5a of the red brief appendix as it was initially passed, expressly says that the interpretation under -- under this section must be done by using methods that all agree are limited to spoken communication.
Now, in the--
Justice Sonia Sotomayor: --So if a lawyer sits down with an interpreter now in his office and says to the interpreter,
"I can't pay for translation work. "
"Now, you sit here and interpret what this letter says for me. "
Is that what we're asking lawyers to do now--
Mr. Fried: --Not at all, Your Honor.
Justice Sonia Sotomayor: --if we accept your reading?
Mr. Fried: No, Your Honor.
That would not constitute interpreting, because it would not -- the interpreter would not be communicating between live parties in the context of a real-time proceeding.
Justice Sonia Sotomayor: But you would say that might be different in a courtroom.
Mr. Fried: Well--
Justice Sonia Sotomayor: Because the lawyer is communicating something live.
It could be in the courtroom, but not outside.
Mr. Fried: --That -- that's correct, Your Honor.
Justice Sonia Sotomayor: Is there something logical about this?
Mr. Fried: Yes, Your Honor, because in the courtroom, in the context of a live spoken proceeding, that satisfies all of the ordinary definitional elements of interpreting.
But that's not the case in somebody's office in the presence of a single party and a written document.
And -- and there's no question, Your Honor, that to the extent there's any ambiguity with respect to unusual examples, this is a distinction that's absolutely clear in the vast majority of real world incidents.
Justice Ruth Bader Ginsburg: What about depositions?
The translation would be of the spoken word, but it wouldn't be in court.
Mr. Fried: Well, I do think there -- one could potentially argue that spoken interpretation at a deposition isn't covered, in light of some of the dictionaries like Black's Law Dictionary, which indicates that the word is restricted to people who work in trial.
But I certainly think that it could be argued either way, in a case where--
Justice Anthony Kennedy: Well, what's -- what's your position?
I -- I take a deposition in my law office and I have to have an interpreter there.
Is that recoverable or not?
Mr. Fried: --I'm not sure we have a definitive -- I think you could argue it either way, Your Honor.
It doesn't affect our case.
Justice Anthony Kennedy: Well, how do you think it affects the way you read the statute?
What do you think should be the result?
Mr. Fried: I think there's a reasonable reading that that should be covered.
I think that's certainly -- we have no vested interest in opposing that.
Justice Anthony Kennedy: Let me ask you this question: In the background here, is there some concern that we're going to have minor cases but with huge translation costs, and it would be simply unfair?
And if the answer to that is yes, isn't that taken care of by the statutory direction that the Court "may" give costs?
Mr. Fried: Well, Your Honor, that sort of discretion demonstrably does not prevent the issuance of these large awards, because there have been a number of large awards issued notwithstanding that discretion.
Justice Anthony Kennedy: Well, isn't that an abuse of discretion?
Mr. Fried: Well, not necessarily, Your Honor.
The -- the district courts--
Justice Anthony Kennedy: Well, I mean, in other words, if the court sees that the -- the cost of preparing documents into an English language is quite substantial in light of what's involved in the case, and it's just not fair to award them, can't that court in its discretion deny them, or is that not the way it works?
Mr. Fried: --That's the way it works, Your Honor.
But I don't think that that discretion is sufficient to eliminate the deterrent effect that this court has recognized in cases like Farmer and Fleischmann, because it occurs at the end of the case, after a litigant has already decided whether to bring suit.
The deterrent effect occurs ex ante when a risk-averse litigant has to decide whether to bring the case.
But I -- I would just note that these sorts of policy questions, Your Honor, arise in the context of language that by its terms extends to interpreting and not translating.
And we would say that the relevant policy question is simply whether there are sensible reasons to -- that Congress may have drawn a line where it did.
And plainly, there are adequate reasons that these services, document translation services that were excluded, are potentially large and fall under the general principles that this Court has recognized are -- are presumptively not frequently avoided--
Justice Sonia Sotomayor: I guess I'm -- I'm having a problem with they're "potentially large".
Interpretive services are potentially large, although you claim that they don't -- they have sort of a terminus point.
I've been in trials where we've had multiple languages simultaneously being translated to multiple defendants, with witnesses speaking even other languages.
I was in the Southern District of New York.
And fees there without translation, just for the oral courtroom work, sometimes went ahead for months.
So potentiality's not the question.
If you're talking about disproportionality, then that goes to the word "reasonable" in the statute, doesn't it?
I mean, the Ortho case you point to, the court did sizably cut the translation fees.
And more importantly, from the little I can tell, that was a huge patent case with a patent that was claimed to control 60 percent of a market.
So I don't know that that was a small case by anyone's definition.
Mr. Fried: --Certainly, Your Honor.
As to the difference, I mean, I'm not aware of -- under this statute, an interpreter's spoken interpretation award approaching anywhere near some of the larger document translation awards that have been issued.
But nonetheless, I am not denying that there could be large interpreter awards in some cases.
But the fact is that adding on document translation awards is additive.
The sort of necessity review that would be necessary to police these document translation awards would be quite burdensome on the district courts.
And in fact, the necessity standard is actually particularly problematic to apply to translations, Your Honor.
Because the fact is you don't know what a document says until it has been translated.
And the exercise of trying to go back and reconstruct ex ante what a -- whether a person was reasonably necessary in causing to be translated something that they didn't know what it meant is likely to lead to very subjective--
Justice Stephen G. Breyer: Well, I haven't -- I was interested here that the amici on your side consists of some professors and the, I guess the trade associations of interpreters or translators, but the people who would have the financial stake in it, the defense bar, the plaintiff's bar in certain circumstances, have not filed any brief.
And I tend, though not putting a lot of weight on it, to take it as a sign, along with the long period of time, that there hasn't been some tremendous financial problem.
What evidence is there that there has been?
I see a few cases, but in general.
Mr. Fried: --Your Honor, I am not at all suggesting that there has been a tremendous financial strain on the system.
We are saying that this is a statute that, by its plain language, extends to--
Justice Stephen G. Breyer: The plain language argument I got.
But how many years has the great bulk of the court been going the other way?
Mr. Fried: --I'm sorry, Your Honor, I actually, I didn't hear the end of your question.
Justice Stephen G. Breyer: How many years has, would you say, the great bulk of the Federal system been deciding this differently from the way you think it should be?
Mr. Fried: I'm not sure that it is the great bulk.
I mean, there's been a significant disagreement--
Justice Stephen G. Breyer: That's the bulk.
Mr. Fried: --Well, I think it's -- I think that it's increased over time.
Justice Stephen G. Breyer: Well, when did all this rot set in, in your opinion.
Mr. Fried: I'm not sure that I could pinpoint a date, Your Honor.
Justice Stephen G. Breyer: When is the first one?
Mr. Fried: Your Honor, I'm not sure.
I will have to find out while my adversary is arguing what the first decision was.
Justice Sonia Sotomayor: As far back as 19 -- It was a district court.
But it was as far back as the 1930s.
Some in the '40s, some in the '50s.
Mr. Fried: Certainly it wasn't construing 1920(6) at that time, Your Honor.
Justice Sonia Sotomayor: No, no.
But these awards have been common.
Mr. Fried: Your Honor--
Justice Stephen G. Breyer: You have a case cited from 1812.
I take it that's it?
Mr. Fried: --Certainly, Your Honor.
Justice Antonin Scalia: I thought -- I thought we were addressing not whether it's a good idea to give fees, but whether fees are payable under this particular statute, right?
Which was enacted when?
Mr. Fried: --1978, Your Honor.
Justice Antonin Scalia: 1978.
That's not so long ago.
Mr. Fried: Absolutely correct, Your Honor.
And the structural reasons are -- within the Court Interpreters Act itself are every bit as powerful as the ordinary textual indicia that support our reading.
And in fact Kan Pacific's argument that the word "interpreters" should be assigned different meanings in different parts of the statute is -- is unsupported.
Kan Pacific relies on what it characterizes as different language in section 2, which put in 1827 and 1828, and section 7, which put in the cost provision.
And it notes that section 2 sometimes uses the broader phrase
"interpreters in courts of the United States. "
whereas section 7 uses the word "interpreters" alone.
But Kan Pacific doesn't examine the context in which section 2 does and does not use that broader phrase.
And those specifics really undermine any argument one might make along those lines.
As originally passed in section 2, 1827 contains 26 occurrences of the word "interpreter", not counting the title.
And of those 26 cases, 24 simply use the word "interpreter" by itself.
So there is certainly at the very threshold no overarching pattern of usage distinction between them.
More fundamentally, though, the substantive provisions addressing the use of interpreters by parties in these cases in 1827 do so without using that broader phrase.
Justice Antonin Scalia: Do so without--
Mr. Fried: --I'm sorry, Your Honor.
Without using the broader phrase
"in courts of the United States. "
Subsection (d) is the provision that -- that governs the use of interpreters in cases brought by the government.
This appears at page 2a of the red brief appendix, and it simply provides that upon a determination of need, the services of an interpreter will be used in these cases.
The only two provisions that use the phrase
"interpreters in courts to the United States. "
are subsections (a) and (b), which are both at 1a of the red brief appendix, and both of these provisions -- are addressing the scope of the Administrative Office's duties under the statute.
And as such, it simply makes clear that, in keeping with the office's ordinary function, it's -- it's facilitating the work of the Federal courts and making clear that the offices -- and, for instance, certifying interpreters for the State courts.
So nothing in this language suggests in any way that the -- that the word "interpreter" means something different in different places or that the services of an interpreter are viewed as embracing the same thing.
So we think that a variety of indicia of meaning converge in this case to support the conclusion that 1920(6) is limited to spoken communication.
If there are no further questions, I will reserve the balance of r.
ORAL ARGUMENT OF DAN HIMMELFARB ON BEHALF OF THE RESPONDENT
Mr. Himmelfarb: Thank you, Mr. Chief Justice, and may it please the Court:
The word "interpreter" has two possible meanings that are relevant here, a broader one and a narrower one.
The broader meaning is a person who translates from one language to another.
Under this definition the terms "interpreter" and "translator" are used interchangeably.
Justice Antonin Scalia: Have you ever seen a book, you know, translated from a foreign language, you know, "War and Peace", you know, and you are at the mercy of what we call the translator, and it says on the fly page, you know, "John Smith", comma, "Trans", period.
Does it ever say "John Smith", comma, "Int", period?
Mr. Himmelfarb: It is used in the narrower sense in that context, I think, Justice Scalia.
The narrower meaning of "interpreter" is member of a profession that specializes in oral translation; and in that narrower sense, an interpreter is distinct from a translator, which is the sense you've just identified, which is a person who specializes in written translation.
Our submission is that, as the great majority of courts who have expressed a view on this question have recognized, the broader definition makes more sense in the particular context at issue here.
And we say that for a number of reasons.
The first is that the basic purpose of translation in the litigation context is to make evidence intelligible to the parties and the court.
Section 1920 reflects the congressional judgment that the cost of making evidence intelligible to the parties and the court can be borne by the losing party.
Justice Antonin Scalia: No, it doesn't.
It reflects that judgment only if you are right that "interpreter" means "translator".
Mr. Himmelfarb: Well--
Justice Antonin Scalia: I mean, you are begging the question.
You could say that the one should embrace the other.
But whether Congress thought that or not is mostly dependent on the language Congress used, isn't it?
Mr. Himmelfarb: --Well, let me be as clear as I possibly can.
I'm obviously not standing here saying we lose under the language, but it would be a good idea for the statute to cover written translation.
That's not a legitimate enterprise for a court interpreting a statute.
What I'm saying is that the text of the statute bears two -- permissibly bears two possible meanings.
That being the case, it is a legitimate enterprise for the Court to say which makes sense, which is it most likely that Congress would have intended in this particular context?
Justice Samuel Alito: Why does your interpretation make sense?
Shouldn't we view this against the backdrop of the American rule on fees, that each party generally bears its own costs and only in specific circumstances does the loser pay?
Now, the taxation of costs is a very narrow concept.
What is the difference between a case in which a lot of documents have to be rendered from one language to another prior to the court proceeding and a case in which there is a mass of scientific evidence that has to be interpreted by a scientist?
Or financial evidence that has to be interpreted by an accountant?
In those instances, the losing party doesn't pay for the winner's expenses, does it?
Mr. Himmelfarb: Well, let me -- let me address the first part of your question first, which is essentially, as I understand it, isn't there a background principle that says costs don't get taxed?
I actually think insofar as far as tax -- costs are concerned, as distinct from attorney's fees, the background principle actually goes the other way.
Justice Samuel Alito: Back up.
Costs get taxed, but costs are very narrow and they are a very small part of the expenses of a party litigating a case.
Isn't that -- isn't that true?
Mr. Himmelfarb: I think ordinarily that is true, but I don't think that it follows, it follows in any way, that there is some sort of tie-breaking interpretive canon that says when you are interpreting the costs statute, some version of which has been in effect since the middle of the 19th century, if you are unsure about the scope of it, that you err on the side of narrowness rather than breadth.
I just don't think there is any such interpretive principle.
Justice Elena Kagan: Well, aren't you asking for an interpretive principle that errs on the side of breadth rather than narrowness?
Mr. Himmelfarb: No, we don't.
Justice Elena Kagan: Why don't we just ask ourselves what's the most common, what's the best reading?
Mr. Himmelfarb: Well, I think you obviously have to start there in this case, as you do in any statutory case; and our submission is that you have two possible ordinary definitions.
You have two possible common usages.
Justice Elena Kagan: But the dictionaries themselves tell us that one usage is far more common than the other.
Mr. Himmelfarb: I mean, I guess I just have to dispute that.
We have Webster's, which, you know, Justice Scalia's view notwithstanding, is viewed by many people as an authoritative dictionary of English language.
We have got Black's Law Dictionary which I think everyone agrees is the leading law dictionary, which provides as a definition of "interpreter" the broad definition that we advocate here.
To be sure--
Justice Antonin Scalia: Well, I guess Black's Law Dictionary which -- the editor of it is a -- is co-author with me, so I -- I feel obliged to spring to his defense--
Since it is a law dictionary, presumably it ought to have taken into account the cases you are referring to, many of which use the word in -- in this sense, right?
Mr. Himmelfarb: --That's true.
Justice Antonin Scalia: Like Garner.
Mr. Himmelfarb: That's absolutely true, and just as a dictionary, a law dictionary will take those cases into account, I think it's ordinarily presumed that Congress is taking into account the cases, too, and it's taking into account dictionary definitions as well.
Chief Justice John G. Roberts: One -- one of the things that concerns me is the impact of -- of cost allowance on the normal litigation incentives.
An interpreter in court is one thing.
When you suddenly get a situation where the costs could be quite large, particularly in a -- in a disparate way, not necessarily shared by both sides; somebody goes into court; they know they are going to have to -- if they lose, they will have to pay the interpreter this; and the other side comes in and says well, we think we need to submit this 10,000 pages of -- of documents, which will have to be translated and by the way, if you lose you are going to pay for that.
In other words, it is a much more variable element of costs than the interpreter.
Mr. Himmelfarb: I -- I'm not sure that's true.
I think in large litigations where you have many, many days of trial and potentially pretrial proceedings, you could have very large oral translation costs.
Where there are many depositions, you could have large oral translation costs.
But even if I were to accept the premise of your question, it seems to me that the way these costs get controlled is through the exercise of district court's discretion, not to tax every -- the cost of translating every document.
The Fifth Circuit, which is one of the--
Chief Justice John G. Roberts: So what -- so what goes into the exercise of that discretion?
Mr. Himmelfarb: --Well, typically the criteria for -- I should add, the criteria for taxing costs of every sort, not just interpreter costs and not just document translation costs, are essentially thought to be necessity and reasonableness.
So in connection with document translation costs, the Fifth Circuit has suggested that the way to tax them, the appropriate way to tax them might be just to tax the cost of translating headings of foreign language documents, which should be sufficient to let the lawyer know whether this is a relevant document that might bear further translation, and then only the documents that really turned out, based on the translation of the heading, to have some significance to the case.
So that's just one example of the way the discretion gets exercised.
Justice Ruth Bader Ginsburg: Mr. Himmelfarb, in section 1920, there are two provisions that specify costs necessarily obtained for use in the case.
And the interpreter provision doesn't have that qualification, doesn't say necessarily obtained for use in the case.
Mr. Himmelfarb: That -- that's true.
For -- for--
Justice Ruth Bader Ginsburg: You are asking to read interpreter means to mean translator as well, and to import into sub (6)
"necessary for use in the case. "
Mr. Himmelfarb: --The necessity limitation in subsection (6) as with other subsections that don't specifically use the word 54 of the Federal Rules of Civil Procedure, essentially make this a discretionary call for the district courts.
Necessity has long been recognized as one of the components of that discretionary determination.
The reason we say it doesn't make sense to have the narrower definition of interpreter be the one that Congress enacted is that written document translation can be and often is every bit as important as oral translation.
In many cases, it could be more important, in a contract case, for example.
Justice Stephen G. Breyer: What do you think on the -- I guess nobody wants to defend this argument, including you, but the First Circuit and several others did look to the provision which permits the taxing of costs with the making of specific exemplifications or official documents, for the costs of making copies of any materials obtained for use in the case.
Now, if you are going to make a copy for use of the case of something in Japanese, you are going to have to turn it into English.
So they included that as part of the costs of making copies of the materials and documents for use in the case.
Now, which is discretionary; it's whether you do or whether you don't.
But that's how several courts could read it.
I am just wondering, that didn't strike me as so obviously wrong.
Maybe it's obviously--
Mr. Himmelfarb: Well, I mean, I suppose it goes without saying that we would rather win under subsection (4) than lose under subsection (6).
Justice Stephen G. Breyer: --I am sure you would like to win on any subsection.
Mr. Himmelfarb: --That's true, absolutely true.
There are some courts that have suggested that document translation fits under subsection (4).
I think those that have done so have tended to do it -- tended to do it before section (6) was added in 1978.
Justice Stephen G. Breyer: All right.
So the history is that prior to '78 a serious number -- some number of circuits said you can get the translation paid for under -- as -- as being necessary to create a copy that is usable in court.
Then Congress passes, this knowing of those cases in principle, and then there is a shift after Congress passes this, and then the majority of courts say, all right, this is the provision that permits it.
Is that an accurate statement?
Mr. Himmelfarb: --I think that is accurate.
Before 1978 some of the courts that taxed document translation costs I believe also relied on their inherent authority, which at the time was thought to be a permissible ground for taxing costs.
Justice Stephen G. Breyer: Is there anything in the history of the '78 statute which suggested that Congress didn't want these taxed?
Mr. Himmelfarb: Absolutely not.
There is -- there is frankly nothing in the legislative history of the Court Interpreters Act really that bears on this issue one way or another.
There is a lot of legislative history on which Petitioner relies, but it's all addressed to section 2, which is a separate provision which deals with a separate subject, which is the appointment of interpreters in cases initiated by the United States.
Justice Antonin Scalia: So if there is no legislative history -- there's -- legislative history on the other side either, right?
Saying that we -- we mean this to include--
Mr. Himmelfarb: No, that's right.
We don't -- we--
Justice Antonin Scalia: --So, absent legislative history, I guess we have to rely on the words of the statute, right?
Justice Stephen G. Breyer: That means you don't have to look at this.
Mr. Himmelfarb: --I guess I just go back to where I started, which is that we think under dictionary definitions and under common usage there are two permissible meanings of interpreter.
Chief Justice John G. Roberts: Well, there are two -- there may be two permissible, but you don't dispute the fact that it is more natural and common to speak of someone interpreting oral communication and someone translating written, correct?
Mr. Himmelfarb: I don't -- I -- I think I would dispute it.
I don't know whether one is more common than the other in any meaningful way.
It may be slightly more common to use it in its narrower sense to refer to a member of a profession, but it certainly is common enough that you have district judges from all over the country in written opinion just sort of matter-of-factly talking about the people who translate documents as interpreters.
Justice Elena Kagan: Well, how about in the U.S. Code?
Is there any place in the U.S. Code where the word interpreters clearly encompasses written translators?
Mr. Himmelfarb: I'm not aware of any.
There aren't -- there -- I frankly don't think there are that many places in the United States Code where the term "interpreter" is used other than in its sort of obvious, narrowest sense based on the context of a statute.
So, for example, a number of statutes talk about funding translators and interpreters who are not citizens of the United States.
It seems to us that in that context what Congress is getting at is the interpreter and translator in the narrower sense of members of a profession.
Justice Elena Kagan: So in every other case where the U.S. Code uses the word "interpreters" means only oral translators, and that's the obvious way to use the word, but in this case we are supposed to reach a different conclusion?
Mr. Himmelfarb: Justice Kagan, I would say this, in every other provision of the United States Code in which the interpreter -- the word "interpreter" is used, either it's not clear whether it includes document translation or the context is such that it strongly indicates that it's limited to oral translation.
And neither of those situations obtains here, in our view.
Chief Justice John G. Roberts: Let me rephrase your answer a different way.
You are not -- you don't know of any situation in the U.S. Code where translators -- or the interpreter means translator?
Mr. Himmelfarb: I am not aware of any other provision in the United States Code.
Chief Justice John G. Roberts: And you checked every one, so there is none, right?
Mr. Himmelfarb: There is -- there is none where it is clear that it covers document translation.
There are -- there are State statutes which we have cited which use the term "interpreter" to -- to clearly cover document translation, and we cite them in our brief.
Justice Samuel Alito: Somebody did a computer search in the database of, let's say, newspaper articles and magazine articles for use of the term "interpreter" in relationship to a foreign language.
And let's say you look at 1,000 hits.
How many of those do you think would use the term "interpreter" to refer to rendering a written document from one language to another?
Mr. Himmelfarb: I would not be at all surprised if it was more than 50 percent of the hits that used it in its narrower sense.
Justice Sonia Sotomayor: You are like daring Justice Alito to go do this now.
Mr. Himmelfarb: However--
Justice Samuel Alito: How much would you bet?
If you bet me enough, I will look at 1,000, I would be surprised if it's 2 percent.
Mr. Himmelfarb: --I couldn't venture a guess, and I would rather not bet you.
I do want to say something about the concept of sight translation, which is something that my friend Mr. Fried averted to.
Sight translation is a hybrid endeavor.
It is the oral translation of written documents.
One of the reasons we think that the broader meaning of interpreter makes more sense in section 1920 is that it can't really account in any sensible way for sight translation.
In this case, for example, our counsel -- Kan Pacific's counsel took Taniguchi's deposition.
And to prepare for the deposition, he reviewed -- he had to review some contracts which were written in Japanese and some medical records which were written in Japanese.
Now, under our view, having those documents translated in writing to prepare for the deposition, would result in a potentially taxable cost.
Under Taniguchi's view, they wouldn't.
But it sounds like under either party's view, if instead of handing those documents off to a document translator to have them translated in writing, he had sat down in his law office with a member of the interpreter profession and said here's a box of documents, please, tell me what they say.
That would potentially be a taxable cost.
That seems to me to be a very odd result and one that's--
Chief Justice John G. Roberts: It's an odd result because nobody's going to do it.
Because at that point you don't know who is going to get saddled with the cost.
So it wouldn't be likely that you would do something that would increase the costs, would it?
Mr. Himmelfarb: --Well, I don't know that it would increase the costs.
It may be cheaper to use an oral translator -- an -- an oral translator as opposed to a written document translator.
And there might be a variety of reasons why you would choose to use one or another, time constraints, the importance of the particular document, what have you.
But I don't think that it's likely that Congress would have thought that the potential taxability of the translation--
Justice Antonin Scalia: Is it -- is it clear?
Does anybody contend -- does the other side contend that the use of a viva voce translation outside of court is covered by the meaning of interpreter here.
I assume the interpretation here meant interpretation in the oral proceeding that is the trial.
And you are -- you are saying that if we hold against you, interpretation will still include all oral translations outside of the trial.
Mr. Himmelfarb: --Well, I think every court that's ever thought about this has found that deposition -- oral translation at deposition--
Justice Antonin Scalia: At deposition, which I consider part of the -- part of the trial process, but not -- not in the lawyer's office where he asks somebody to sit down and -- and read this document to me.
Mr. Himmelfarb: --Well, there's -- I don't see any basis in the statute or, frankly, in the practice of translators or interpreters of drawing that line in that particular place.
And as far as the question of where Taniguchi would the Court -- Court draw its concern, I think that is a very hard question to answer, because he has moved back and forth so many times on that.
His briefs offer several different -- several different narrower definitions of interpreter, sometimes saying it's the oral translation of oral speech.
Sometimes saying it's the oral translation of any language, whether it's oral or written.
Sometimes saying it's limited to in-court interpretation.
Sometimes it's saying it's not.
That, it seems to us, is a very good reason for adopting the broader interpretation.
It seems very unlikely that Congress would want courts to get into these extremely complicated and, frankly, unprincipled line drawing exercises.
Justice Elena Kagan: I don't know, Mr. Himmelfarb.
Why is this any -- any different from than any other case in which we draw the line, and we find that the result of drawing the line is that we have created some close cases, cases that are near the line.
So, you know, just to give you an obvious example, the fact that there are some few minutes in every 24-hour period where's it's hard to say that something is night or day does not mean that there is no night and that there is not day.
And that seems to me what the question is here.
Here you can think of some hard cases, but they are just that, they are marginal cases.
Mr. Himmelfarb: I think -- I think line drawing is sometimes a necessary exercise because the text of the statute compels you to do it.
Our submission is that the text of this statute doesn't compel it, because you have a readily available alternative interpretation which doesn't require any sorts of these line drawings.
And as far as whether this is sort of a -- an outlying -- the examples I give are outlying oddball circumstances goes, I don't think they are.
Sight translation, for example, is a core function of interpreters and translators alike.
And I guess the only other point I would say -- make about sight translation, my friend, Mr. Fried suggested that that -- that is something that could only be covered if it takes place during the course of live proceedings, which I think is yet another narrowing of the word "interpreter".
But as far as I am aware, most sight translation is little, if any, sight translation actually occurs during the--
Justice Stephen G. Breyer: I accept the following, that there was a history basically giving -- doing what you want before the statute, but the statute, nobody thought, was going to do that history, that statute is capable of being translated but it is a most natural thing.
And so, the question is, do we take -- go with the smaller capabilities and leave well enough alone or do we say, gee, that is just too hard to translate that -- to interpret the statute that way.
Have you got any other examples in the law?
I mean, can you think of an example in the law which I have been trying to think of where there was a history of doing something?
The statute comes along that makes it a little tougher for the judges to do it.
And then the court says either, sorry, too tough now, or it says let sleeping dogs lie.
Mr. Himmelfarb: --Well, I think -- I mean, I think it is an important point.
And this goes to the question of, you know, whether it's difficult for district courts to make a determination of whether a particular document translation should be taxed, which is one of the arguments on the other side.
I think the history of this is strong evidence that it's not difficult.
Courts have been doing this, certainly, since 1978 when this provision was added and even before then.
And they haven't had any evident difficulty in deciding whether to tax documents in its document translation, and if so, how much.
So I think the -- the history certainly bears on the case in that respect.
Justice Sonia Sotomayor: Justice Breyer is asking, can you think of an example where words are not on their face plain, and the court has looked to the practices that have been impugned into that word incentive and we decided that they will be accepted in the way that practice has given them meaning?
Mr. Himmelfarb: --I can't think of any case off the top of my head, and I think it's true that this case is a little bit different, because insofar as courts were taxing document translation costs before 1978, they were relying on something other than the word "interpreter".
So it may be a stretch to say that when Congress chose to use the word "interpreter", it was necessarily incorporating what courts had previously done.
But I don't think it's entirely irrelevant that this has been done for a long time, and I think it's not unfair to presume that Congress would have been aware of that.
The Court Interpreters Act has two main provisions as relevant here.
There's section 2, which is really the more -- the main provision -- and then section 7, which became 1920(6) in Title 28, which is the provision at issue here.
An important part of Taniguchi's submission is that section 2 is limited to oral translators, and therefore, it should follow that section 7, the provision at issue here, is likewise limited to oral translators.
And our main submission on that -- on that question is that Congress actually used different language in section 2 and section 7.
Section 2 added two provisions to Title 28: section 1827 and section 1828, which are titled, and which address, respectively, interpreters in courts of the United States, and special interpretation services.
In section 7, which added subsection (6) to 1920, Congress does not use those two phrases.
Instead, it uses the phrase "interpreters" simply, not
"interpreters in courts of the United States. "
and then "special interpretation services".
So to the extent that there is any appropriate canon about the use of similar or different language in different provisions of a statute, it seems to us that the appropriate canon is that one should presume that when Congress uses different language, it intends different meanings.
I do want to respond to Mr. Fried's point about the number of times the word 2.
And as I understand his point, it's that -- it's that it is much more frequently used by itself than it is with the -- with the words
"in courts of the United States. "
What the statute actually does is add -- say that it's adding section 1827, which it calls
"interpreters in courts of the United States. "
It then has a subsection that says that
"the administrative office of the United States court has to establish a program to facilitate the use of interpreters in courts of the United States. "
Chief Justice John G. Roberts: Where are you reading from?
Mr. Himmelfarb: I'm sorry, this is the red brief, 1a of the appendix, which is the very beginning of the Court Interpreters Act.
And then there's subsection (c), flipping over to the next page -- I'm sorry, subsection (b) -- which says that
"the director has to certify interpreters in courts of the United States. "
So what it does at the beginning of the statute is establish this thing called a certified interpreter in courts of the United States.
When it thereafter speaks of interpreter simply, that's just a shorthand for a certified interpreter in courts of the United States.
So it seems to us that as far as the Court Interpreters Act is concerned, even if it's true that section 2 uses the term in the narrower sense, it doesn't necessarily follow that it's used in the narrower sense in section 7.
And the only point I would add about that, as we set -- point out in our brief, it's really not clear that section 2 is limited to oral translators.
Soon after the Court Interpreters Act was enacted, and for approximately 16 years thereafter, the administrative office would publish these notices in the Federal Register notifying the public that they were -- there were going to be certification exams for interpreters under section 2 of the Court Interpreters Act.
These were pretty streamlined notices, not long at all.
And one of the main aspects, the main sections of the notice, was a list of what the director of the administrative office said were the -- were the duties of interpreters in courts of the United States.
And to be sure, it listed simultaneous and consecutive interpreting, but it -- it listed sight translation and it listed document translation.
So at a minimum, section 2 is not sufficiently clearly limited to oral translators, that the director of the administrative office couldn't issue these notices saying otherwise.
I guess the -- the last point I want to make about other statutes, some of which use the term "interpreter" and "translator" together, I have already addressed that in part by saying that in many of those statutes, it really is pretty clearly used in the narrower sense, because you're talking about members of a profession.
The -- the only other thing I would say about that is that the premise of Taniguchi's reliance on those statutes seems to be that it would be strangely redundant for Congress to speak in other statutes about interpreters and translators together, if, in fact, the two terms could be used interchangeably, and that redundancy should be avoided.
But subsection (6) of 1920 itself has a redundancy in it, because it covers both interpreters and special interpretation services.
And I don't think anybody could dispute that anyone who carries out a special interpretation service is an interpreter.
So it's not at all odd to have redundancy when Congress is addressing the subject of translation.
Chief Justice John G. Roberts: Thank you, counsel.
Mr. Fried, you have minutes remaining.
REBUTTAL ARGUMENT OF MICHAEL S. FRIED ON BEHALF OF THE PETITIONER
Mr. Fried: Very briefly, Your Honor, three points.
In the first place, Justice Breyer, I just wanted to let you know that the first decision -- first appellate decision construing 1920(6) to encompass document translation was the D.C. Circuit's decision in Lam Quy in 1981.
Second, Mr. Himmelfarb noted that Black's Law Dictionary takes a definition that arguably could encompass document translation, but he didn't mention that the operative version of Black's in 1978 when this statute was passed did not -- was a different definition that excluded document translation.
And this change in the definition occurred in 1999, in the seventh edition, after a number of these judicial decisions construing 1920(6) had come down, which supports Your Honor's observation that it could very well merely reflect a recognition of these decisions, rather than independent support for them.
Finally, Your Honors, Mr. Himmelfarb cited certain notices issued by the administrative office from many years ago.
These brief notices were ministerial documents that simply announced a forthcoming examination.
The office has issued the guidance to judiciary policy, which is -- which is the fully expressed views on this issue.
And it's posted on the office's website.
It's current as of June 9, 2011 -- and expressly provides that document translation is not a part of the statutory services of an interpreter.
If there are further questions, I'd be happy to address them.
Chief Justice John G. Roberts: Thank you, counsel.
The case is submitted.
Chief Justice John G. Roberts: Justice Alito has our opinion this morning in Case 10-1472, Taniguchi versus Kan Pacific Saipan.
Justice Samuel Alito: This case concerns the terms "interpreter" and "translator".
A federal statute, 28 U.S.C. Section 1920 entitles the prevailing party in a civil case to recover certain costs from the loosing party.
The Court Interpreters Act amended this provision to include "compensation of interpreters".
The question here is whether compensation of interpreters covers the costs of producing English language versions of documents that are written in another language.
This is a personal injury suit brought by a professional Japanese basketball player, Kouichi Taniguchi against the owner of a property on which the plaintiff was injured, Kan Pacific Saipan.
The plaintiff lost the case and the District Court awarded costs to the defendant.
These costs included the expense of translating from Japanese to English certain documents that the defendant used in preparing its defense.
The Ninth Circuit affirmed the award.
It concluded that compensation of interpreters is not limited to the cost of translating live speech but reasonably encompasses the cost of translating written documents.
Because the term "interpreter" is not defined in the statute, we give the word its ordinary meaning and it is not customary to speak of the interpretation of a written document from one language into another.
Instead, the term that is customarily used is "translation".
At the time of the statute's enactments -- enactment, dictionaries uniformly define "interpreter" to include persons who translate orally but only a handful define the word broadly enough to encompass translators of written materials.
One of the few dictionaries in the latter category was the Oxford English Dictionary, but the OED's treatment is illustrative.
The OED stated that the use of the term "interpret" to refer to the translation of written documents had become obsolete.
Any definition of the word that is absent from many dictionaries and is deemed obsolete in others is hardly a common or ordinary meaning.
We, therefore, conclude that the term "interpreter" is normally understood as one who translates orally from one language to another.
Nothing in the Court Interpreters Act or in other provisions of Section 1920 hints that Congress intended to go beyond this ordinary meaning.
All of this is explained in greater detail in our opinion.
For anyone who is interested, the opinion is written in English. Anybody [Laughter] who wants to read it in another language will have to pay to have it translated [Laughter] not interpreted.
Justice Ginsburg has filed a dissenting opinion, in which Justice Breyer and Justice Sotomayor have joined.