What Are Costs on Appeal in Federal Court?

It costs money to print paper copies of briefs. Are those costs recoverable in a Federal Appeal?

When the Eleventh Circuit Court of Appeal decides an appeal, the case is not quite over. In addition to making the determination of whether to seek rehearing or rehearing en banc, the winning party should also be ready to deal with filing a bill of costs, in addition to considering whether the party is entitled to an award of attorney’s fees (which we’ll cover in another blog post). What are those costs and when are they owed?

When is a Party Entitled to an Award of Appellate Costs?

Under Federal Rule of Appellate Procedure 39, costs are automatically taxed against the losing party if the judgment is affirmed or reversed in full and the Court does not rule otherwise. If there is a partial victory, costs are only taxed as the Court orders. So in most cases, one party is going to end up paying the other party’s costs.

When Must the Party Entitled to Costs File the Bill of Costs?

A bill of costs is due to the appellate Court no later than the later of 14 days from the Court’s opinion issuing, or 14 days from the date the Court rules on a timely post-opinion motion for rehearing or rehearing en banc. Fed. R. App. P. 39(d). The bill of costs be itemized, verified, and include receipts if copies were made by an outside vendor.

What Types of Costs Are Appellate Taxable Costs?

While a party may have paid other kinds of costs to their counsel or vendors on appeal, only the costs specifically set out in the rules are taxable on appeal. There are two categories of costs: Those awarded by the appellate court, and those awarded by the trial court.

Which Costs Are Awarded by the Appellate Court?

As to the appellate court, the party against whom costs have been taxed must both pay the court’s docketing fee, and the costs the other side incurred making paper copies of documents that are required to be submitted to the Court.

Specifically, the rules provide that the appellate court shall award costs of “producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f).” FRAP 39(c). How many copies that is depends on which Court you are in. The default rule under the Federal Rules of Appellate Procedure require service of 10 copies of the Appendix on the Court, along with one copy to each separately represented party, Fed. R. App. P. 30(3), in addition to providing the court with 25 paper copies of each brief and serving two paper copies on each separately represented party. Fed. R> App. P. 31(b). But appellate courts are expressly invited to set their own rules on the number of copies, and the Eleventh Circuit has thankfully reduced the number of trees that become recoverable costs.

In the Eleventh Circuit, a represented party likely filed 2 copies of the appendix, see 11th Cir. Rule 30-1(d). If the case was set for oral argument, the party probably filed three additional copies of the appendix, so the count goes up to 5. Id. It also includes “[o]ne originally signed brief and six copies (total of seven)” copies filed with the Court, along with a paper copy to each party separately represented. 11th Cir. R. 31-3. Count the number of

How Do You Calculate the Costs Awarded by the Appellate Court?

The appellate docketing fee is authorized by statute, 28 U.S.C. § 1913, and is set by the administrative office of the U.S. Courts. Effective December 1, 2020, that docketing fee was set at a flat $500 fee.

The cost of the copies is calculated by multiplying the number of pages required to be filed by a per-page fee that is the greater of the actual costs incurred, or the maximum per-page cost set by each Court of Appeals, which shall reflect local costs and “should encourage economical methods of copying.” Fed. R. App. P. 39(c). In the Eleventh Circuit, that per page figure is currently set at 15 cents per in-house copy, and a max of 25 cents per commercial reproduction, when also supported by receipts showing your actual expenditure. The Eleventh Circuit also has a specific fillable form it expects parties to use as the bill of costs [.pdf]. These costs are generally included in the mandate by the Clerk of Court.

What Costs Are Awardable in the Trial Court?

There are a few other costs specifically taxable by filing an appropriate motion with the trial court, but they usually only apply if the Appellant (the party that lost before the trial court) wins on appeal. Those costs are:
(1) the preparation and transmission of the record;
(2) the reporter’s transcript, if needed to determine the appeal;
(3) premiums paid for a bond or other security to preserve rights pending appeal; and
(4) the fee for filing the notice of appeal.

Generally, the appellate court affirms the trial court’s judgment, there is no basis to request these fees, because they weren’t paid by the Appellee. Still, if you win as an appellant, don’t forget to keep an eye on these fees, which can add up! You will be required to provide supporting documentation (such as receipts) so be sure to keep those as you make the payments.

How Do You Collect Costs Awarded?

In the Eleventh Circuit, parties are required to mail the costs awarded to the other side directly, without further action by the Court.

What’s it like to appear before the United States Supreme Court? Let’s talk about it, podcast-style.

The United States Supreme Court hears oral argument from attorneys in only about 80 cases a year. Thus, many appellate attorneys never have the opportunity to experience what it is like to actually advocate in the High Court. I (Jared) recently learned what it is like appearing before the Supreme Court from Duane Daiker, a fellow board-certified appellate specialist in Tampa Bay and a good friend of DPW Legal, on the Issues on Appeal podcast.

Duane Daiker and Jared Krukar sit with studio monitors and microphones at a table while recording a podcast
Duane Daiker and Jared Krukar recording
the Issues on Appeal podcast.
Not pictured? The feather quill pen
memento Duane keeps in his office.
(Photo courtesy of Duane Daiker and used with permission.)

Duane is the creator and host of Issues on Appeal. Each week he speaks with fellow appellate practitioners about topics that are interesting to, well, the same people we suspect are interested in this Florida Appellate Procedure Weblog!

Duane recently took his first trip as an advocate to the Supreme Court. He sat second-chair on a case he handled through the trial and intermediate appellate stages. This visit was a perfect topic for his podcast. But rather than just talk about his visit himself on his podcast, Duane enlisted me to guest host his show, and turn the tables on him.

I asked every question I could come up with that all of us inquiring appellate nerds would want to ask. Where do you go when you enter the court? What’s security like? Who comes and talks to you? Is there a lawyers’ lounge? What’s it like sitting at counsel’s table? Did Justice Thomas ask a question? I hear you get a feather quill–can I touch it? (Yes, I really did ask, and yes, I did get to hold it. You know you would ask, too.) Our discussion was full of interesting tidbits about the preparation, the day of argument, the people at the Court, and the entire experience.

If this sounds interesting to you, check out Episode 4 of the Issues on Appeal podcast, “At the High Court.” You can check it out at the link or on iTunes, Google Podcasts, or Spotify.

And if you like that episode, listen to some of the other episodes. Duane has already had a number of great guests. Dineen and I are both slated to be guests for future episodes. What will we talk about? Stay tuned to find out.

Want to hear more about the United States Supreme Court or other appellate issues? Subscribe!

We’ve discussed the SCOTUS in the past (for example, here and here) and we’re sure to do it again. Keep abreast of changes there or in other courts that are interesting or may impact your practice by subscribing for updates on the Florida Appellate Procedure Weblog.

Blurred Lines and Appellate Preservation

Gaye Family lead counsel Richard Busch (left) explains the surprising preservation issues.

The higher the stakes in the litigation, the more important it is to have an appellate nerd in your corner, because you can’t make your arguments to the appellate court if you haven’t preserved them at trial. Most folks who follow copyright law are aware that the Ninth Circuit late last month upheld the jury verdict in favor of Marvin Gaye’s family holding that the song Blurred Lines infringed the copyright in Marvin Gaye’s Got to Give it Up. See Williams v. Gaye, 885 F. 3d 1150 (9th Cir. 2018) [.pdf]. And while there are a lot of fascinating copyright issues there, even more important are the appellate preservation issues — the lawyers representing Thicke and Williams tanked large portions of their appeal before they even got there by failing to speak up at two important points at the trial: At the close of plaintiff’s evidence, and before the jury was dismissed after rendering its verdict.

Failure to make a Rule 50(a) Motion

In Federal Court, the rule that covers judgment as a matter of law (also sometimes called judgment notwithstanding the verdict or JNOV from the Latin judgment non obstante veredicto) requires that in a jury trial the Defendant must make a motion at the close of plaintiff’s evidence (Rule 50(a)) and then renew that motion at the end of the case (Rule 50(b)) in order to preserve a challenge to the sufficiency of the evidence. The Defendants were left with arguing that “a colloquy between their counsel and the district court regarding jury instructions and verdict forms qualifies as an “ambiguous or inartfully made” Rule 50(a) motion,” and should suffice for preservation purposes, but but the Court found that colloquy fell “far short” of even an inartful motion, and found sufficiency of the evidence unpreserved. Ouch. Williams v. Gaye, 885 F. 3d 1150, n.21 (9th Cir. 2018). In Florida, the equivalent requirement is for a motion for directed verdict.

Failure to Object to Jury’s Verdict

Defendant’s waived their objection to an alleged inconsistency in the jury’s verdict by failing to object before the jury was discharged. And this was not a controversial point — it was a pretty black letter rule that the court mentioned with citation to two older cases and moved on quickly. That objection must, must be made before the jury is discharged.

It can be very hard in the heat of battle — and trial can be a battle — to remember every possible preservation issue. That’s why we recommend you have an appellate specialist on your trial team. What you don’t want is to blur the lines of preservation.

Thank you to the panelists at the Florida Bar Business Law Section’s 9th Annual Intellectual Property Symposium for their fascinating presentations!