Tuesday, May 17, 2011

Circuit Split Watch: Lost in Translation

This article first appeared in the May 16, 2011, issue of the National Law Journal's Supreme Court Insider.

A circuit split is developing over how to interpret, well, the word “interpreter” and what that means for a litigant trying to recoup court costs. The most recent case in the split, from the U.S. Court of Appeals for the 9th Circuit, could reach the U.S. Supreme Court as a petition for certiorari soon.

A court can award costs to a prevailing party, including “compensation of interpreters,” under 28 U.S.C. § 1920(6). The 7th Circuit, through Judge Richard Posner, has held that an interpreter translates only the spoken word, while the 6th and 9th Circuits also include translation of documents, allowing broader cost recovery.

The recent 9th Circuit case began in the Northern Mariana Islands, aptly described by the local national anthem “Gi Talo Gi Halom Tasi” (In the Middle of the Sea). The fourteen islands, per the CIA’s World Factbook, are “in the North Pacific Ocean, about three-quarters of the way from Hawaii to the Philippines.” However, the islands, a U.S. territory, are under the jurisdiction of a U.S. district court there and the 9th Circuit.

Touring an island resort, Kouichi Taniguchi, a former Japanese professional baseball player, fell through a wooden deck. At the time, Taniguchi indicated that he was fine and did not need medical assistance. Two weeks later though, he reported injuries and related expenses.

Taniguchi sued the resort for negligence and both sides moved for summary judgment. Granting the defendant’s motion, the federal district court noted an unrebutted declaration reporting regular deck inspections at the resort, which revealed no defects. The district court awarded costs to the resort, “including the costs of translating contracts and other documents from Japanese to English.”

Taniguchi appealed and the 9th Circuit affirmed in two separate decisions: an unpublished memorandum on summary judgment and a published opinion on costs.

The published opinion highlighted the split between the 6th and 7th Circuits about “compensation of interpreters.” Finding that a dictionary definition of “interpret” (i.e., “translate into intelligible or familiar language”) could include spoken and written translation, the 6th Circuit held that costs for both can be recovered. The 9th Circuit agreed, explaining that this result 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.”

In the 7th Circuit, Judge Richard Posner was not swayed by the dictionary definition. Posner is known for scrupulous attention to language. For instance, in a recent, unrelated case, he made news for calling the word “choate” (incorrectly used as the opposite of “inchoate”) “a barbarism.” Though now an accepted legal usage, Posner said, it will not be “used by us!”

In the costs case, Posner wrote: “[T]he translator of a document is not referred to as an interpreter. 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.” Awarding costs for translating documents “would be a stretch, and there should be a good reason for disfiguring statutory language before wielding the knife.”

Given the clear circuit split on translation costs and the fact that recovery of such costs will be a recurring issue, the Supreme Court may decide to intervene. The Court could also pause before stepping in, to give Congress an opportunity to clarify the statute or to allow further development in the lower courts.

But first, Taniguchi must decide whether to take his case from the “Middle of the Sea” to Washington, D.C., via a petition for certiorari. The 9th Circuit ruled in March 2011 and denied rehearing just last week on the summary judgment portion, so the time for decision is now.