Fifth Circuit Notes Split Re Whether a District Court Has the Power to Award Attorneys' Fees as Costs Pursuant to FRAP 7 and 39(e).

Per Vaughn v. American Honda Motor Company Inc., --- F.3d ----, 2007 WL 3172068 (5th Cir. Oct. 31, 2007):

The district court did not affirmatively assess attorney's fees against the objectors, conditionally or otherwise, pursuant to a fee-shifting statute. We note in this regard that there is a split among the federal circuit courts as to whether a district court has the power to award attorneys' fees as costs pursuant to Rules 7 and 39(e) of the rules of appellate procedure when an underlying statute provides that attorneys' fees may be included as costs.^FN12 That issue is not before us today.

FN12. Compare In re Cardizem CD Antitrust Litig., 391 F.3d 812, 817 (6th Cir.2004) (determining whether attorneys' fees are included in “costs” by reference to the state statute that formed the basis of the suit), Pedraza v. United Guar. Corp., 313 F.3d 1323, 1333 (11th Cir.2002) (“[T]he meaning of ‘costs,’ as used in Rule 7, should be derived from the definition of costs contained in the statutory fee shifting provision that attends the plaintiff's underlying cause of action.”), and Adsani v. Miller, 139 F.3d 67, 75 (2d Cir.1998) ( “Adsani's argument that Rule 7 costs cannot include attorney's fees is also unavailing because the Copyright Act in section 505 of Title 17 allows attorney's fees to be levied ‘as part of the costs.’ ”), with Hirschensohn v. Lawyers Title Ins. Corp., No. 96-7312, 1997 WL 307777 *3 (3d Cir. June 10, 1997) (“[W]e conclude that Rule 7 does not authorize a bond to cover estimated costs of attorneys' fees.”), and In re Am. President Lines, Inc., 779 F.2d 714, 716 (D.C.Cir.1985) (“The costs referred to [in Rule 7] are simply those that may be taxed against an unsuccessful litigant under Federal Appellate Rule 39, and do not include attorneys' fees that may be assessed on appeal.”).