I'll admit that I was initially of the impression that when the Court of Appeals expressly told the parties that they were to "bear their own costs," that included attorney's fees. That's how we usually use the term "costs" in the modern era, which occasionally include the right to recover fees.
But Judge Fisher persuades me otherwise.
Costs on appeal are subject to one standard. Attorney's fees another. In a "split" appellate opinion, a panel might essentially call it even on the cost front. But attorney's fees might nonetheless be recoverable since you can often recover them as long as you've prevailed on a significant issue. Even if you got crushed on others.
So I think we're on the right side of the circuit split here.
