U.S. Supreme Court
Consumer Protection – FDCPA — costs
15 U. S. C. 1692k(a)(3) is not contrary to, and, thus, does not displace a district court’s discretion to award costs under, Rule 54(d)(1).
The argument of Marx and the United States depends critically on whether §1692k(a)(3)’s allowance of costs creates a negative implication that costs are unavailable in any other circumstances. The expressio unius canon that they invoke does not apply “unless it is fair to suppose that Congress considered the unnamed possibility and meant to say no to it,” Barnhart v. Peabody Coal Co., 537 U. S. 149, and can be overcome by “contrary indications that adopting a particular rule or statute was probably not meant to signal any exclusion,” United States v. Vonn, 535 U. S. 55. Here, context indicates that Congress did not intend §1692k(a)(3) to foreclose courts from awarding costs under the Rule. First, under the American Rule, each litigant generally pays his own attorney’s fees, but the Court has long recognized that federal courts have inherent power to award attorney’s fees in a narrow set of circumstances, e.g., when a party brings an action in bad faith. The statute is thus best read as codifying a court’s pre-existing authority to award both attorney’s fees and costs. Next, §1692k(a)(3)’s second sentence must be understood in light of its first, which provides an award of attorney’s fees and costs, but to prevailing plaintiffs. By adding “and costs” to the second sentence, Congress foreclosed the argument that defendants can only recover attorney’s fees when plaintiffs bring an action in bad faith and removed any doubt that defendants may recover costs as well as attorney’s fees in such cases. Finally, §1692k(a)(3)’s language sharply contrasts with that of other statutes in which Congress has placed conditions on awarding costs to prevailing defendants. See, e.g., 28 U. S. C. §1928.
668 F. 3d 1174, affirmed.
Thomas, J.; Sotomayor, J., dissenting.