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United States Court of Appeals, Seventh Circuit.

ASHLEY W., et al., Plaintiffs-Appellees, v. Eric HOLCOMB, Governor of Indiana, et al., Defendants-Appellants.

No. 21-3028

Decided: July 11, 2022

Kristen Leigh Bokhan, Kirkland & Ellis LLP, Attorney, Washington, DC, Aaron H. Marks, Attorney, Kirkland & Ellis LLP, New York, NY, Marcia Robinson Lowry, Attorney, A Better Childhood, Inc., New York, NY, for Plaintiffs-Appellees. John Robert Maley, Peter J. Rusthoven, Dylan Alexander Pittman, Attorneys, Barnes & Thornburg LLP, Indianapolis, IN, Julia Catherine Payne, Esq., Thomas M. Fisher, Melinda R. Holmes, Attorneys, Office of the Attorney General, Indianapolis, IN, for Defendants-Appellants. David R. Carpenter, Attorney, Sidley Austin LLP, Los Angeles, CA, for Amicus Curiae Nonprofit Child Advocacy Organizations.

Appellants (collectively 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 interests.

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 unsurprising, 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, 110 S.Ct. 1717, 109 L.Ed.2d 135 (1990); Morgan v. Potter, 157 U.S. 195, 198, 15 S.Ct. 590, 39 L.Ed. 670 (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 WL 3065111, 2017 U.S. Dist. LEXIS 112188 (M.D. Fla. July 19, 2017); Gohl v. Livonia Public Schools, 2018 WL 1128254, 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 request for an award of costs against the next friends is denied.

Easterbrook, Circuit Judge, in chambers.

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Docket No: No. 21-3028

Decided: July 11, 2022

Court: United States Court of Appeals, Seventh Circuit.

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