Conservation Congress v. U.S. Forest Service et al

Filing 108

ORDER signed by District Judge Troy L. Nunley on 11/18/2014 OVERRULING Plaintiff's 95 Objections to 92 Bill of Costs; AWARDING costs to the defendants in the amount of $9,502.12. (Michel, G)

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UNITED STATES DISTRICT COURT

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EASTERN DISTRICT OF CALIFORNIA

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CONSERVATION CONGRESS,

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No. 2:12-cv-02800-TLN-CKD

Plaintiff,
v.

ORDER

UNITED STATES FOREST SERVICE
and UNITED STATES FISH AND
WILDLIFE SERVICE,

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Defendants.

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This matter is before the Court on Plaintiff Conservation Congress’s (“Plaintiff”)

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objections to the bill of costs submitted by the prevailing party in this matter, Defendants United

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States Forest Service and the United States Fish and Wildlife Service. (“Defendants”). (ECF

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Nos. 92 & 95.) For the reasons discussed below, the Court overrules Plaintiff’s objections and

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awards costs to Defendants.

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I.

Background

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On May 19, 2014 this Court granted summary judgment in favor of Defendants and

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denied Plaintiff’s motion for summary judgment. (ECF No. 90.) Defendants submitted their bill

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of costs on June 2, 2014, in the amount of $9,502.12. (ECF No. 92.) This amount is attributed

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entirely to costs incurred in scanning, duplicating, collating, and Bates-stamping the

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administrative record, which numbered in excess of 24,000 pages.

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compilation of the administrative record to a private contractor. (Decl. of Julia Thrower, ECF
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Defendants outsourced

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No. 92-1.) Plaintiff filed objections to the bill of costs on June 12, 2014. (ECF No. 95.)

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II.

Legal Standard

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Under Fed. R. Civ. Proc. 54 (d)(1), the prevailing party in a lawsuit shall recover its costs

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“unless . . . a court order provides otherwise.” Fed. R. Civ. P. 54 (d)(1). The rule creates a

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presumption that costs will be taxed against the losing party, but “vests in the district court

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discretion to refuse to award costs” if the losing party shows why costs should not be awarded.

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See Ass'n of Mexican-Am. Educators v. State of California, 231 F.3d 572, 591–92 (9th Cir. 2000).

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28 U.S.C. § 1920(4) provides that courts may tax as costs “[f]ees for exemplification and

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the costs of making copies of any materials where the copies are necessarily obtained for use in

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the case.” Courts have found the costs of compiling the administrative record to fall within the

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scope of § 1920(4). See, e.g. Conservation Cong. v. U.S. Forest Serv., 2010 WL 2557183 at *1

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(E.D. Cal. June 21, 2010); see also E.D. Cal. Local Rule 138(b) (“Due to the size of

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administrative records, attorneys shall, if possible, submit the administrative record in electronic

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format …”).

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If the court declines to award costs, it must specify its reasons for doing so. Berkla v.

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Corel Corp., 302 F.3d 909, 921 (9th Cir. 2002). However, it is not required to specify reasons for

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its decision to abide by the presumption to award costs to the prevailing party. Save Our Valley v.

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Sound Transit, 335 F.3d 932, 945 (9th Cir. 2003).

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III.

Analysis

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With respect to the task of scanning, duplicating, collating, and Bates-stamping an

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administrative record in excess of 24,000 pages, the Court finds that the total cost of $9,502.12 is

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not facially unreasonable. This award is within the scope of costs awarded in recent

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environmental cases in the Ninth Circuit, where costs were attributed primarily to compiling the

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administrative record. See Sierra Club v. Tahoe Reg’l Planning Agency, 2014 WL 3778274, at

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*1 (E.D. Cal. July 30, 2014) (Plaintiff paid an initial $42,000 in costs, and a second costs payment

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of $11,769.24); Klamath Siskiyou Wildlands v.Grantham, 2013 WL 3283490, at *3 (E.D. Cal.

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June 27, 2013) (awarding $2,752.70 in costs); Conservation Cong. v. U.S. Forest Serv., 2010 WL

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2557183, at *1 (E.D. Cal. June 21, 2010) (awarding $3,561.54 in costs); Pit River Tribe v. Bureau
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of Land Mgmt., 2013 WL 6185240, at *3 (E.D. Cal. Nov. 26, 2013) (awarding $19,851.60 in

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costs); Friends of Tahoe Forest Access v. U.S. Dep't of Agric., 2014 WL 1575622, at *3 (E.D.

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Cal. Apr. 17, 2014) (awarding $14,875.23 in costs).

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Under 28 U.S.C. § 1920(4), “fees are permitted only for the physical preparation and

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duplication of documents, not the intellectual effort involved in their production.” Romero v.

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Pomona, 883 F.2d 1418, 1428 (9th Cir. 1989), abrog. on other grounds by Townsend v. Holman

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Consulting Corp., 914 F.2d 1136 (9th Cir. 1990). See also Plantronics, Inc. v. Aliph, Inc., 2012

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WL 6761576, *12 (N.D.Cal. Oct.23, 2012) (“Printing copies (or blowbacks), printing native files

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from the computer to PDF ... are the equivalent of photocopying. Certain ancillary tasks are

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common to electronic or paper discovery, including Bates stamping and putting slipsheets (or

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some marker) between documents to show document breaks.”). The invoices attached to

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Defendants’ bill of costs indicate Defendants requested that the private contractor “prep and

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organize admin record [and] hyperlinks,” “extract attachments from email PDF files,” “identify

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missing entries,” “update documents citations,” and Bates-stamp the administrative record. (ECF

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No. 92, Ex. C.) There is not adequate support for the claim that the compilation of the

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administrative record in this case falls outside the purview of the “physical preparation and

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duplication of documents,” or the purview of “[f]ees for exemplification and the costs of making

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copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C.

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§ 1920(4). Plaintiff asserts that the primary documents (for example, the final Environmental

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Impact Statement) were already available in a searchable electronic format in the public record,

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and therefore costs incurred in incorporating them into the Bates-stamped administrative record

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were unnecessary. Plaintiff also points out that the contractor’s invoices contain only a lump sum

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amount per page, with no breakdown as to the services charged. (ECF No. 95 at 3–5.) Those

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concerns are noteworthy, but the actual amount of costs requested is not unreasonable.

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Equity concerns may override the presumption of cost recovery when the suit involves

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issues of substantial public importance; the issues are close and difficult; there is great economic

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disparity between the parties or a lack of financial resources by one party; the losing party’s case

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had some merit; or imposition of costs may have a chilling effect on future litigation. See Ass’n
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of Mexican-Am. Ed., 231 F.3d at 592; Stanley v. Univ. of S. California, 178 F.3d 1069, 1079 (9th

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Cir. 1999). Plaintiff argues that economic disparity between the parties is present but that is true

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for most lawsuits brought by a non-profit against a governmental entity. Plaintiff also argues:

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that the legal and factual issues were novel; that it brought this suit in good faith and in the public

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interest; and that imposition of costs could have a chilling effect. (ECF No. 95 at 9–10.)

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However, the central issues in this case – the Government’s review and approval of a timber

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project and the impact of the project on the Northern Spotted Owl – are not new. Plaintiff does

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not support the claim that one or more of the aforementioned equity concerns weighs so heavily

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as to overcome the default rule. Therefore, Plaintiff’s objections to the bill of costs are overruled

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and costs (ECF No. 92) are awarded to Defendants in the amount of $9,502.12.

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Dated: November 18, 2014

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Troy L. Nunley
United States District Judge

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