Ashley W. v. Eric Holcomb, Governor of Indiana

In the
United States Court of Appeals
For the Seventh Circuit
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No. 21-3028
ASHLEY W., et al.,
Plaintiffs-Appellees,
v.
ERIC HOLCOMB, GOVERNOR OF INDIANA, et al.,
Defendants-Appellants.
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Appeal from the United States District Court for the
Southern District of Indiana, Evansville Division.
No. 3:19-cv-00129-RLY-MPB — Richard L. Young, Judge.
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DECIDED JULY 11, 2022
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EASTERBROOK, Circuit Judge, in chambers. Appellants (col-
lectively Indiana) prevailed in this appeal, 34 F.4th 588 (7th
Cir. 2022), and filed a bill of costs under Fed. R. App. P.
39(a)(3), which provides that “if a judgment is reversed, costs
are taxed against the appellee”. But they did not request costs
from the appellees, who are children. Instead they sought
costs from the next friends who represented the children’s in-
terests.

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2 No. 21-3028
Indiana does not cite, and I could not find, any appellate
decision holding that costs may be assessed against next
friends under Rule 39(a). The lack of authority is unsurpris-
ing, because the Supreme Court has held that next friends are
not parties to suits in which they assist minors or incompetent
persons. See Whitmore v. Arkansas, 495 U.S. 149, 163 (1990);
Morgan v. Po>er, 157 U.S. 195, 198 (1895). Rule 39(a) authorizes
awards against losing litigants, not against their agents
(which may include lawyers and guardians ad litem as well as
next friends).
Some district judges have awarded costs against next
friends under Fed. R. Civ. P. 54(d)(1) when the next friend is
responsible for the child’s expenses generally. See, e.g., C.M.J.
v. Walt Disney Parks & Resorts US, Inc., 2017 U.S. Dist. LEXIS
112188 (M.D. Fla. July 19, 2017); Gohl v. Livonia Public Schools,
2018 U.S. Dist. LEXIS 34245 (E.D. Mich. Mar. 2, 2018). That
would be so if, for example, a child’s parents sue as next
friends. But the next friends in this litigation are neither the
children’s natural parents nor their foster parents. That may
explain why Indiana does not ask for an award of costs
against the children, as the state may need to reimburse foster
parents for the expenses of these children. Indiana does not
want a circular award under which it pays with one hand
what it receives with the other.
Rule 39’s text resolves this subject against Indiana. Its re-
quest for an award of costs against the next friends is denied.

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