United States District Court, N.D. Oklahoma
WILLIAM S. FLETCHER, et al., Plaintiffs,
THE UNITED STATES OF AMERICA, et al., Defendants.
OPINION AND ORDER
GREGORY K. FRIZZELL, CHIEF JUDGE UNITED STATES DISTRICT COURT
the court is Motion to Review Taxation of Costs [Doc. No.
1322] of the federal defendants in this action
(“Federal Defendants”). For the reasons set forth
below, the motion is granted.
January 29, 2016, plaintiffs submitted a Bill of Costs [Doc.
No. 1290] and Motion for Attorney's Fees and Costs Under
the Equal Access to Justice Act (“EAJA”) [Doc.
No. 1291]. The Court Clerk held a hearing on costs on May 5,
2016, and issued a decision awarding $30, 003.19 in taxable
costs the same day. [Doc. No. 1317]. The Federal Defendants
moved for review of that award on May 12, 2016. [Doc. No.
1322]. The Motion to Review Taxation of Costs and Motion for
Attorney's Fees Under EAJA were stayed pending resolution
of plaintiffs' appeal of this court's entry of
judgment on March 11, 2016. [Doc. No. 1337; Doc. No. 1339].
The Tenth Circuit affirmed the court's judgment on April
21, 2017, [Doc. No. 1341; Doc. No. 1342], and the appeal
terminated on June 13, 2017. [Doc. No. 1344].
Federal Defendants argue that because the Court Clerk's
award of costs issued under Fed.R.Civ.P. 54, not EAJA, it
must be vacated. That argument is well-taken. Fed.R.Civ.P.
54(d)(1) provides that “costs-other than attorney's
fees-should be allowed to the prevailing party.”
“But costs against the United States, its officers, and
its agencies may be imposed only to the extent allowed by
law.” Fed.R.Civ.P. 54(d)(1). Here, EAJA, not Rule 54,
governs that determination. See Fruitt v. Astrue,
604 F.3d 1217, 1219 (10th Cir. 2010) (noting “the
statute authorizing an award of costs against the government
is EAJA” and Rule 54's time limits do not control);
Hiller v. United States, No. C 05-01620, 2008 WL
449846, at *32 (N.D. Cal. Feb. 15, 2008) (holding EAJA, not
Rule 54, governs cost awards involving the United States and
its agencies); cf. Neal & Co, Inc. v. United
States, 121 F.3d 683, 684-85 (explaining “RCFC
54(d), and hence any interpretations of it, do not apply in
this case, because EAJA governs” and noting differences
in standards for cost awards in both).
doctrine of sovereign immunity compels this result.
“The United States must consent by way of some
statutory enactment before it may be required to pay fees and
costs.” See Harmon v. United States, No. Civ.
A. 5:00-1072, 2005 WL 713326, at *2 (S.D. W.Va. Mar. 28,
2005). EAJA is such an enactment, and to that end, its
“waiver of sovereign immunity . . . must be strictly
construed.” Estate of Smith v. O'Halloran,
930 F.2d 1496, 1501 (10th Cir. 1991); see also United
States v. Harrell, 642 F.3d 907, 915 (10th Cir. 2011).
In this case, Rule 54 and EAJA establish different standards
for awarding costs. Compare Fed. R. Civ. P. 54(d)(1)
(providing that eligible costs “should be
allowed to the prevailing party”) (emphasis added)
with 28 U.S.C. § 2412(a)(1) (providing that
costs “may be awarded to the prevailing
party”) (emphasis added); see also Neal, 121
F.3d at 686-87 (comparing Rule 54's “presumption in
favor of costs” with EAJA's “permissive,
discretionary” test that “does not create a
presumption in favor of an award”). Because EAJA
enunciates the more stringent standard, that standard must
govern. See Hiller, 2008 WL 449846, at *32;
Neal, 121 F.3d at 686-87. In reaching this
conclusion, the court is “mindful that waivers of
sovereign immunity must be strictly construed in favor of the
United States.” See FTC v. Kuykendall, 466
F.3d 1149, 1156 (10th Cir. 2006).
the Order on Bill of Costs was issued pursuant to Rule 54(d).
Plaintiffs reply that EAJA expressly incorporates 28 U.S.C.
§ 1920, which allows independent judgments of costs
under Rule 54. But “[t]he cross-referenced statute,
§ 1920, simply lists taxable costs, ” not
the standards governing their recovery. See Fruitt,
604 F.3d at 1219. And in fact, plaintiffs' reading of
EAJA has been rejected before. See Kuykendall, 466
F.3d at 1155 (rejecting argument that EAJA's reference to
§ 1920 broadly authorizes judgments as provided for in
§ 1920). Plaintiffs suggest that any difference in cost
evaluations under EAJA and § 1920 “is much ado
about very little if . . . anything at all.” [Doc. No.
1330, p. 2]. As discussed above, that is not true-the
difference, of course, is between a presumptive and
discretionary award and between strict and liberal
constructions of sovereign immunity. Thus, the court
concludes any award of costs must be evaluated and issued
pursuant to EAJA, not Rule 54.
the Motion to Review Taxation of Costs [Doc. No. 1322] is
granted in part and the Order on Bill of Costs [Doc. No.
1317] is vacated. The parties are directed to adress the
appropriateness of recovery of such court costs under EAJA in
supplemental briefing, specifically identifying, attributing,
and separating expenses in relation to the claim on which
plaintiffs prevailed. That briefing shall be limited to the
costs identified in [Doc. No. 1290]. Plaintiffs' opening
brief shall be filed on or before July 13, ...