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Civil Resource Manual

222. Costs Recoverable By The United States

The United States can recover costs in litigation on the same basis as any private party. 28 U.S.C. § 2412(a); Pine River Logging Co. v. United States, 186 U.S. 279, 296 (1902). Costs are recoverable by the United States as a matter of course, unless the court exercises discretion under 28 U.S.C. § 1923 ("may be taxed") and Fed. R. Civ. P. 54(d) ("unless the court otherwise directs") and denies recovery. See United States v. Bowden, 182 F.2d 251, 252 (10th Cir. 1950) (remand to permit trial court to consider allowance in exercise of its discretion); see Farmer v. Arabian American Oil Co., 379 U.S. 227 (1964). While a government employee may not collect a witness fee when testifying on behalf of the United States, his/her travel and subsistence expenses, provided for in 28 U.S.C. § 1821, may be recovered by the United States as a part of its costs. See 6 Moore's Federal Practice ¶ 54.77. If adverse counsel multiplies the proceedings, or increases costs unreasonably and vexatiously, the excess costs may be taxed against him/her personally. See 28 U.S.C. § 1927; Weiss v. United States, 227 F.2d 72, 73 (2d Cir. 1955), cert. denied, 350 U.S. 936 (1956); 12 A.L.R.Fed. 910. See F.R.A.P. 30(b); United States v. Deaton, 207 F.2d 726, 727 (5th Cir. 1953) (as to recovery of the costs of unnecessarily encumbering the record on appeal).

When considering moving for costs as the prevailing defendant in litigation, discretion should be exercised in determining whether a request for the assessment of costs or a reduction in the amount of costs is appropriate. Although it is difficult to establish any set rules for determining under what circumstances costs should not be sought, there may be cases, for example, when the plaintiff's financial situation at the time the litigation was initiated or as a result of the litigation, warrant a request for a reduction in costs or a waiver of costs.

A. Fees of United States Marshal and Clerk, Charges of Court Stenographer, Printing Expenses. The fees of the United States Marshal in effecting service are taxable as costs. 28 U.S.C. § 1920(1). His/her fees for the service of subpoenas are also taxable as costs, as are the United States Marshal's necessary travel expenses. See 28 U.S.C. § 1921. The allowance of the fees of the clerk of the court are specifically covered by 28 U.S.C. § 1920(1).
Section 1920(2) of Title 28 of the United States Code permits taxation of the fees of the court reporter for all or any part of the stenographic transcript "necessarily obtained for use in the case." This does not cover the court's ordering a transcript for its own use, since the statutory salary of the reporter compensates him/her for this copy. Texas City Tort Claims v. United States, 188 F.2d 900, 902 (5th Cir. 1951); cf. Miller v. United States, 317 U.S. 192 (1942). If opposing counsel orders a copy of the transcript for his/her own use, the cost is not recoverable. See Firtag v. Gendleman, 152 F. Supp. 226 (D.D.C. 1957). However, if the court advises counsel that it will be necessary for counsel to furnish a transcript before a decision can be rendered because of the length and complexity of the trial, and certifies that the transcript was "necessarily obtained for use in the case," the costs may be recoverable. Wax v. United States, 183 F. Supp. 163, 164 (E.D.N.Y. 1960). Printing expenses necessarily incurred may be taxed as costs under 28 U.S.C. § 1920(3).
B. Witness Fees and Expenses, Deposition Expenses, Exemplification of Papers. See 28 U.S.C. § 1821, as to witness fees and expenses. Wages lost by a witness may not be taxed as costs. See Andresen v. Clear Ridge Aviation, Inc., 9 F.R.D. 50, 52 (D. Neb. 1949). Nor is the real party in interest entitled to a witness fee for his/her own testimony. Nominal parties or witnesses who have only an incidental interest in the suit are entitled to attendance fees and allowances, and these items may be taxed. See 6 Moore's Federal Practice, ¶ 55.77(5.-1), p. 54-432 (2d ed. 1987). Witness fees and subsistence may be taxable as costs in some instances in which the witness did not testify, as where last minute admissions made the testimony unnecessary. Mueller v. Powell, 115 F. Supp. 744, 746 (W.D. Mo. 1953). Witness fees and subsistence are not restricted to the actual day the witness testifies, but are allowable for each day the witness necessarily attends. Bennett Chemical Co. v. Atlantic Commodities, Ltd., 24 F.R.D. 200, 204 (S.D.N.Y. 1959). Additional sums paid as fees or compensation to expert witnesses, over and above the statutory fees applicable with respect to fact witnesses, may not be recovered. See Henkel v. Chicago, St. Paul, Minn. & Omaha Ry. Co., 284 U.S. 444, 447 (1931).
Deposition expenses are not taxable as costs, where the depositions were taken essentially for purposes of investigation or preparation. When the taking of a deposition was reasonably necessary, even though it may not have been actually used at trial, the costs recoverable by the prevailing party may include the reasonable fee of the officer before whom the deposition was taken, the cost of notarial certificate and postage if the deposition was mailed, reasonable stenographic expense in taking and transcribing the deposition (but not the cost of an extra copy), fees and mileage allowances of witnesses, and, in a proper case, an interpreter's fee. See 6 Moore's Federal Practice ¶ 54.77(4) (2d ed. 1982). The party's attorney's fees in connection with the taking of a deposition are not recoverable. 6 Moore's Federal Practice ¶ 54.77(2) (2d ed. 1974). The expenses of counsel in attending a deposition at a distant point may be imposed on the opposition as a condition of taking a deposition, rather than as a court cost. See North Atlantic & Gulf S.S. Co. v. United States, 209 F.2d 487, 489-90 (2d Cir. 1954).
C. Expenses of Investigation, Consultants, etc. The expenses of investigation, including trial preparation and travel expenses of counsel, are not chargeable as costs. 6 Moore's Federal Practice, ¶ 54.77(4), (6), (8) (2d ed. 1982). The same is true with respect to long distance calls, costs of preparing lists of exhibits, and other items of overhead. Brookside Theatre Corp. v. Twentieth Century-Fox Film Corp., 11 F.R.D. 259, 265-66 (W.D. Mo. 1951), modified & aff'd, 194 F.2d 846 (8th Cir.), cert. denied, 343 U.S. 942 (1952). The moving party under Federal Rules of Civil Procedure 34, generally must bear that cost of copying or photographing. See 76 A.L.R.2d 953, 972. The expense of using experts as consultants at the trial cannot be charged as costs. Braun v. Hassenstein Steel Co., 23 F.R.D. 163, 168 (D.S.D. 1959); American Steel Works v. Hurley Construction Co., 46 F.R.D. 465, 468 (D. Minn. 1969). Costs of models are generally not taxable as costs, even though the models are introduced in evidence. See 6 Moore's Federal Practice, ¶ 54.77(6) (2d ed. 1982).