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223.

Costs Recoverable From the United States

Prior to the July 18, 1966, amendment to 28 U.S.C. § 2412 (1976), costs were not recoverable against the United States (United States v. Chemical Foundation, Inc., 272 U.S. 1, 20 (1926); United States v. Worley, 281 U.S. 339 (1930), or against government officers sued in their official capacity. See Ewing v. Gardner, 341 U.S. 321 (1951). The 1966 amendment applies "only to judgments entered in actions filed subsequent to July 18, 1966." The amendment permitted costs enumerated in 28 U.S.C. § 1920, but not including fees and expenses of attorneys, to be awarded to the prevailing party and against the United States, or any agency thereof or an officer thereof acting in an official capacity. Reimbursable costs are limited by the statute to those actually incurred in the litigation. The government's remaining immunity from costs cannot be waived by any government official. Cf. Munro v. United States, 303 U.S. 36, 41 (1938); United States v. United States Fidelity & Guaranty Co., 309 U.S. 506, 514 (1940). "Congress alone has power to waive or qualify that immunity." United States v. Chemical Foundation, Inc., supra.

The Equal Access to Justice Act ("EAJA"), Title II of Pub.L. No. 86-481, 94 Stat. 2325 (1980), which became effective October 1, 1981, amended the former 28 U.S.C. § 2412 (1976), but preserves that former law in a new section 2412(a), which provides for costs as did the former law. The EAJA adds section 2412(b) which modifies in some situations the traditional statutory prohibition against award of attorney's fees by or against the United States in civil actions.

Section 1923(a) of Title 28 enumerates attorney docket fees which may be taxed as costs, e.g., the docket fee for each deposition admitted in evidence. 28 U.S.C. § 2412, as amended, however, provides that a judgment for costs against the United States shall not include attorney's fees. The attorney docket fees which are usually taxable as costs under 28 U.S.C. § 1923(a), therefore, are not taxable against the United States. See North Atlantic & Gulf S.S. Co. v. United States, 209 F.2d 487, 489-90 (2d Cir. 1954), sustaining the action of the district court under a local rule which required the party taking a deposition at a point more than 150 miles from the court to pay the expense of opposing counsel in attending the taking of the deposition. The court treated the expense as a condition for the taking of the deposition, rather than as an item of court costs.

The 1966 amendment to 28 U.S.C. § 2412 did not affect costs awarded against government corporations, which are treated as private persons. RFC v. J.G. Menihan Corp., 312 U.S. 81, 84 (1940). Costs are also recoverable against the United States in certain civil rights suits the same as any other party. 42 U.S.C. §§ 1971(c), 2000c-7 and 2000e-5(k).

Section 2408 of Title 28 excuses the United States, and its department agencies, and employees, from posting security for damages or costs.