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.

Fees on Fees Rejected by Third District

Two new decisions from Florida’s Third District Court of Appeal make clear that parties should generally not assume they will be awarded attorney’s fees the time spent litigating the amount of attorney’s fees, even if they have a statutory or contractual basis for an award of attorney’s fees generally.

In Diaz v. Kasinsky, No. 3D19-1188 (Fla. 3d DCA Aug. 12, 2020), the Court held that a trial court did not abuse its discretion in declining to award fees on fees in an situation where the trial court had otherwise awarded attorney’s fees as an inherent sanction under the Florida Supreme Court’s decision in Moakley v. Smallwood, 826 So.2d 221 (Fla. 2002). Relying on Moakley and the general rule that shifting attorney’s fees to the other side is against the “American Rule” that each party bear its own fees and costsm, the Court explained that the power to shift fees must be construed narrowly, and held that “Moakley does not provide automatic entitlement to additional attorneys’ fees incurred in securing an underlying sanctions award.” Applying this test, the court find the trial court had acted within its discretion in denying fees on fees.

The Diaz court cites the court’s recent decision in Silver Law Group, P.A. v. Bates, No. 3D19-933, 2020 WL4495452 (Fla. 3d DCA Aug. 5, 2020) as standing for the proposition that Section 57.105, Fla Stat. does not provide a basis for an award of fees for attorneys’ time incurred litigating the amount of fees. The Silver decision does not discuss that case’s facts in detail, but notes that the rule against awarding fees on fees is not new: it reverses “the portion of the award that represents fees incurred for litigating the amount of fees.” based on a citation to a 25 year old case, Eisman v. Ross, 664 So. 2d 1128, 1129 (Fla. 3d DCA 1995).

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Almost Every Florida Appellate Rule Changes on New Years’ Day 2019

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Get your pencils ready–your filings and your calendar will need some adjustment!

The Florida Supreme Court has substantially amended the Florida Rules of Appellate Procedure, changing language in nearly every rule in the book along with related rules from the Florida Rules of Judicial Administration.  It accomplished this through issuing three separate opinions: SC17-152 [.pdf]; SC17-882[.pdf], and SC17-999 [.pdf].  The amendments change, well, almost everything!

The amendments become effective on January 1, 2019.

All the amendments become effective on January 1, 2019, but at two different times: SC17-152 and SC17-999 go into effect at 12:01 a.m., while SC17-882 goes into effect as of 12:02 a.m.

The biggest trap for everyone?  The time periods and mailing issues.

We’ll talk about this again in-depth in the near future, but the elimination of mailing days for every electronically-served document in Florida courts, and then the lengthening of many appellate deadlines to compensate, will require everyone’s calendaring procedures to change significantly. Spoiler alert — in most instances you will actually have more time under the new rules than you did under the old rules.

This post, Part I of a multi-part series, provides a brief summary of every substantive amendment organized by rule.  Following posts will investigate and elaborate on different aspects of the numerous changes.

Summary of appellate-related rule changes (with links)

Before we dive into the analysis though, let’s just get the big picture. Here’s our summary of the changes, with links for your review.
*All links to Supreme Court opinions are to the .pdfs of those opinions.

Rule

Change

Source

Fla. R. Jud. Admin 2.514 [.pdf, entire rule set]

  • When a period is stated in days or a longer unit of time, “begin counting from the next day that is not a Saturday, Sunday, or legal holiday.”
  • 5 days added for only traditional mailing.  No more days for
    electronic service.

SC17-882, p. 9

Fla. R. Jud. Admin 2.516 [.pdf, entire rule set]

  • E-Mail service no longer treated as mail service for computation of time.

SC17-882, p. 10

Fla. R. App. P. 9.010

  • Added applicability of Fla. R. Jud. Admin (formerly in 9.020(h)).

SC17-152, p. 22

Fla. R. App. P. 9.020

  • Removes section regarding Fla. R. Jud. Admin.
  • Reorganizes subsection on motions tolling rendition (without substantive change).
  • Defines “conformed copy.”
  • Other format changes, renumbering of subsections.

SC17-152, pp. 22-24

Fla. R. App. P. 9.030

  • Non-substantive changes only.

SC17-152, pp. 25-27

Fla. R. App. P. 9.040

  • Non-substantive changes only.

SC17-152, pp. 27-28

Fla. R. App. P. 9.100

  • Non-substantive changes only.
  • A reply is due within 30 days of the response.

SC17-152 pp. 29-30

SC17-882, p. 16

Fla. R. App. P. 9.110

  • Clarifies that scope of review in partial final judgments limited to any matter or ruling prior to filing of notice that is directly related to the aspect of the
    judgment under review.
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 30-32

SC17-882, pp. 16-17

Fla. R. App. P. 9.120

  • Omits requirement of appendix for initial brief on the merits in discretionary review over district court decisions.
  • Respondent’s brief on jurisdiction must be served within 30 days of service of petitioner’s brief.

SC17-152, pp. 32-33

SC17-882, p. 17

Fla. R. App. P. 9.125

  • Omits specific format for signature block on certification in form for pass-through appeals to supreme court.

SC17-152, pp. 33-34

Fla. R. App. P. 9.130

  • Adds two new categories to the list of nonfinal appealable orders: “that, as a matter of law, a settlement agreement is unenforceable, is set aside, or never existed;” and “grant or deny a motion to disqualify counsel.”
  • Notice of cross-appeal must be served “within 15 days of service of the appellant’s timely filed notice of appeal or within the time prescribed for filing a notice of appeal, whichever is later.”

SC17-152, pp. 35-36

SC17-882, p. 18

Fla. R. App. P. 9.140

  • Attorney of record for appellant must serve designations to be served on the court reporter, and service must occur before attorney of record will be allowed to withdraw from representation on appeal.
  • Modifies the return of the record rule to require return of only non-electronically filed parts of the record after final disposition of the appeal.
  • When a 3.800(b)(2) motion is filed, the clerk must supplement the appellate record with the motion, any response, any resulting order, and any motion for rehearing, response, and order on the motion. The supplement must be filed within 20 days after filing of the order disposing of the motion.  If no order is filed within 60 days, the 20 days runs from the end of the 60-day period and requires a statement in the supplement that no order was timely filed.  If a motion for rehearing is filed, the clerk must transmit the supplement within 5 days of the order disposing of the rehearing. If no order issues within 40 days, the 5-day period runs from the end of the 40-day period, and the supplement must include a statement that no order was timely filed.
  • “A defendant may cross-appeal by serving a notice within 15 days of service of the state’s notice or service of an order on a motion pursuant to Florida Rule of Criminal Procedure 3.800(b)(2).”
  • “[I]n an appeal by the state under rule 9.140(c)(1)(K), the state’s notice of cross-appeal shall be filed within 15 days of service of defendant’s notice or service
    of an order on a motion pursuant to Florida Rule of Criminal Procedure
    3.800(b)(2).”

SC17-152, pp. 38-39

SC17-882, p. 19

Fla. R. App. P. 9.141

  • Requires the clerk to index, paginate, and send to parties the record on collateral and postconviction cases.
  • Allows for directions to clerk within 10 days of notice of appeal.
  • A reply may be served within 30 days after service of the response.

SC17-152, pp. 42-43

SC17-882, p. 20

Fla. R. App. P. 9.142

  • Non-substantive changes.
  • The briefing schedule allows that the state has 50 days from the date the defendant’s brief is served, and the defendant has 40 days from the date the state’s brief is served.
  • In petitions seeking review of nonfinal orders in death penalty postconviction proceedings, the petitioner may serve a reply within 30 days of the State’s response.

SC17-152, pp. 44-46

SC17-882, pp. 20-21

Fla. R. App. P. 9.145

  • Non-substantive changes
    only.

SC17-152, pp. 47-48

Fla. R. App. P. 9.146

  • In juvenile dependency, TPR, and cases involving families and children in need of services, mandates that review of trial court orders on motions seeking a stay pending appeal shall be by motion.
  • Adds detail for briefing schedule in cases in which more than 1 initial or answer brief is authorized.
  • When an order issues allowing counsel to withdraw, counsel must within 5 days certify that counsel has forwarded the record and transcripts to the parent or is
    unable to do so after making diligent efforts to find the parent.
  • In Dependency and TPR appeals, the initial brief shall be served within 30 days of service of the record or index.  The answer brief shall be served within 30 days of the initial brief. The reply brief shall be served within 15 days of the answer brief.

SC17-152, pp. 48-50

SC17-882, p. 22

Fla. R. App. P. 9.150

  • Non-substantive changes only.

SC17-152, p. 50

Fla. R. App. P. 9.160

  • Non-substantive changes only.

SC17-152, pp. 50-51

Fla. R. App. P. 9.170

  • A party choosing the “alternative appendix” method must serve a copy of the direction to the appellate court as well as the lower tribunal.
  • If another party directs the preparation of record, that direction must be served on the appellate court when served on the lower tribunal.

SC17-152, pp. 51-52

Fla. R. App. P. 9.180

  • Requires a judge of compensation claims to select an approved court reporter and transcriptionist.
  • Deposit of estimated costs due within 20 days of service of notice of estimated costs.
  • Written objections to selected court reporter or transcript due within 20 days of service of notice of selection.
  • Verified petition to be relieved of costs must be filed within 20 days after service of the notice of estimated costs.
  • Lower tribunal may enter an order on the merits of a petition to be relieved of costs without an objection filed after 30 days following the service of the petition.

SC17-152, pp. 53-57

SC17-882, pp. 23-24

Fla. R. App. P. 9.190

  • Removes reference to section 120.56 (rule challenges) in procedures for proceedings involving disputed issue of fact.
  • Creates new subsection for procedures for appeal from rule challenge proceedings under section 120.56.

SC17-152, pp. 57-61

Fla. R. App. P. 9.200

  • Requires service of designations to court reporter upon the court reporter or
    transcriptionist.
  • Reorganizes requirements of court reporter upon receipt of designation, moves to different subsection.
  • Moves requirements for organization of transcripts in the record to its own subsection.
  • Objections or amendments to proposed statement of evidence or proceedings must be served within 15 days of service of the proposed statement.
  • The cross-appellee has 15 days to direct the clerk to include additional documents, exhibits, or transcripts from the service of the cross-directions.

SC17-152, pp. 61-63

SC17-882, p. 25

Fla. R. App. P. 9.210

  • Clarifies that briefs filed in electronic version need not be also filed in paper.
  • Cover sheet of brief now requires email address of attorney filing the brief.
  • Formalizes the “one attorney, one brief” rule.
  • If more than one initial or answer brief is filed, the responsive brief is due to be served within 20 days after the last prior brief.  If the last brief is never served, the time runs from the date on which it was due to be served.
  • “Unless otherwise required shall be served within 30 days after service of the initial brief; the reply brief, if any shall be served within 30 days after service of the answer brief; and the cross-reply brief, if any, shall be served within 30 days thereafter.”

SC17-152, pp. 64-65

SC17-882, pp. 25-26

Fla. R. App. P. 9.225

  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.310

  • Non-substantive changes only.

SC17-152, p. 66

Fla. R. App. P. 9.320

  • Request for oral argument due 15 days after the last brief (or the reply in a petition proceeding) is due to be served.

SC17-882, pp. 26-27

Fla. R. App. P. 9.330

  • Adds “written opinion” to the title of the rehearing and clarification rule.
  • Details requirements for a motion for certification.
  • Details and outlines requirements for a motion for written opinion.
  • Eliminates the requirement for a certification for a motion for a written opinion.
  • “All motions filed under this rule with respect to a particular order or decision must be combined in a single document.”
  • Clarifies that rule only applies to orders that resolve appeals, original proceedings, or motions for appellate proceedings.  Does not limit inherent authority to reconsider nonfinal appellate orders.
  • “A response may be served within 15 days of service of the motion.”
  • In bond validation proceedings, a “reply may be served within 10 days of service of the motion.”

SC17-152, pp. 66-69

SC17-882, p. 27

Fla. R. App. P. 9.331

  • Court will now notify parties once it decides to determine a proceeding en
    banc.
  • Signature block under required statement for rehearing en banc omitted.
  • “A response may be served within 15 days of service of the motion.”

SC17-152, pp. 69-70

SC17-882, p. 28

Fla. R. App. P. 9.350

  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 10 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b)
  • In a 9.120 proceeding, a notice of voluntary dismissal does not become effective until the later of 15 days following service of the notice to invoke discretionary
    jurisdiction or 10 days after the time prescribed by rule 9.120(b).

SC17-152, pp. 71-72

SC17-882, p. 28

Fla. R. App. P. 9.360

  • Clarifies that joinder is only realignment of existing parties to appeal; it does not allow addition of new parties parties.  Rephrases procedures for joinder as seeking realignment from appellee or respondent to appellant or petitioner.
  • The body of the notice shall reflect a new proposed caption.  Clerk will change the caption upon receipt of notice and payment of fee.

SC17-152, pp. 72-73

Fla. R. App. P. 9.370

  • Leave of court is required to serve an amicus brief in regards to rehearing, rehearing en banc, or certification to the supreme court.
  • Notice of joinder must be served within 15 days of the notice of appeal or petition.

SC17-152, pp. 72-73

SC17-882, p. 290

Fla. R. App. P. 9.380

  • NEW RULE – Notices of related case or issue are now required to be filed.  No argument allowed.

SC17-152, p. 74

Fla. R. App. P. 9.400

  • Adds time limits for filing a motion for fees in discretionary proceedings under rules 9.030(a)(2)(A) and 9.030(a)(2)(A)(v).
    • 9.030(a)(2)(A) – no later than time for serving the respondent’s brief on jurisdiction, or if jurisdiction is accepted, the time for serving the reply brief.
    • 9.030(a)(2)(A)(v) – no later than 5 days after filing of the notice, or if jurisdiction is accepted, the time for serving the reply brief.

SC17-152, pp. 74-75

Fla. R. App. P. 9.410

  • Omits signature requirement following the certification of service.
  • Initial service of the motion must be no later than the time for serving a permitted response to the challenged document or, if no response is permitted, within 20 days after the service of the challenged document or the presentation of argument at oral argument.
  • Respondent has 15 days from final service of a motion to serve response.

SC17-152, pp. 74-76

SC17-882, p. 30

Fla. R. App. P. 9.420

  • Clarifies that service of petitions invoking original jurisdiction shall be by both e-mail and paper format.

SC17-152, pp. 77-78

Fla. R. App. P. 9.430

  • Non-substantive changes only.

SC17-152, pp. 78-79

Fla. R. App. P. 9.500

  • Clarifies governing provision of Florida Constitution, requires court to allow interested persons to be heard once request is determined to be within the purview of the applicable provision.
  • The justices must file their opinions not less than 10 days from date of request unless delay would cause public injury.
  • The governor shall be advised in writing.

SC17-152, pp. 79-80

Fla. R. App. P. 9.510

  • Procedures for advisory opinions to attorney general modified.
  • Requires justices to render their opinions no later than April 1 of the year in which an initiative is to be submitted to the voters pursuant to article XI, section 5 of the Florida Constitution.

SC17-152, pp. 80-81

Fla. R. App. P. 9.700

  • Non-substantive changes only.

SC17-152, p. 81

Fla. R. App. P. 9.710

  • Non-substantive changes only.

SC17-152, pp. 81-82

Fla. R. App. P. 9.720

  • Non-substantive changes only.

SC17-152, pp. 82-83

Fla. R. App. P. 9.800

  • Numerous amendments to the citation rule.

SC17-999

These rule changes follow on the heels of last year’s amendments to the appendix rules and some other substantive amendments.  At this point, almost every appellate rule has been changed in the last year, so best practice would require looking up every rule and not relying on memory.

Stay tuned for more analysis.

We’ll go further in-depth into the time changes, the newly-appealable non-final orders, and other facets of these rule changes in future blog posts.  Enter your e-mail address in the box to the right to get up-to-date news and analysis on these topics and other news and events as they relate to appellate practice in Florida.