Walding et al v. United States of America et al

Filing 365

ORDER re 356 Bill of Costs, filed by James Orr, Martha E. Newton, Susana Ortiz-Ang, United States of America, Marc Moore, Jose Gonzalez, James De La Cruz, Maureen Dunn, Jose Mungia. Signed by Judge Xavier Rodriguez. (rg)

UNITED STATES DISTRICT COURT
WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
E.A.F.F., et al.,
Plaintiffs,
VS.
UNITED STATES OF AMERICA, et al.,
Defendants.

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Civil Action No: SA-08-CA-124-XR

ORDER
On this date, the Court considered the Bill of Costs (docket no. 356) filed by the federal
Defendants in this case. The federal Defendants include the individual federal defendants and the
United States.
Analysis
The federal Defendants were prevailing parties in this case and are entitled to costs pursuant
to Rule 54(d) and 28 U.S.C. § 1920.1 The federal Defendants seek a total award of $100,292.02 in

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Plaintiffs’ FTCA claims against the United States were dismissed for lack of jurisdiction. Title 28
U.S.C. § 1919 provides, “Whenever any action or suit is dismissed in any district court, the Court of
International Trade, or the Court of Federal Claims for want of jurisdiction, such court may order the
payment of just costs.” The Fifth Circuit has recognized that an award of costs under § 1919 is discretionary.
See Religious Tech. Ctr. v. Liebreich, 98 F. App’x 979, at *986-87 (5th Cir. 2004). However, the United
States is a prevailing party under Rule 54, which provides, “Unless a federal statute, these rules, or a court
order provides otherwise, costs--other than attorney's fees--should be allowed to the prevailing party.” FED.
R. CIV. P. 54(d)(1). The Fifth Circuit has noted,
Section 1919 was enacted to empower courts to award costs even if the court’s dismissal for
lack of jurisdiction did not result from a merits adjudication. See Mansfield, C. & L.M.R.
Co. v. Swan, 111 U.S. 379, 387, 4 S. Ct. 510, 28 L. Ed. 462 (1884). However, where there
is a prevailing party (as here) § 1919, which merely empowers the court to award costs and
does not direct the court with regard to its discretion, does not conflict with Rule 54(d)(1)
and therefore does not “provide otherwise.”

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costs.2 Plaintiffs timely filed objections to the Bill of Costs.
Federal Rule of Civil Procedure 54(d) provides, “Unless a federal statute, these rules, or a
court order provides otherwise, costs--other than attorney’s fees--should be allowed to the prevailing
party.” Section 1920 defines the term “costs” as used in Rule 54(d) and enumerates the expenses
that a federal court may tax as a cost under the authority found in Rule 54(d). Gaddis v. United
States, 381 F.3d 444, 450 (5th Cir. 2004); see also Crawford Fitting Co. v. Gibbons, 482 U.S. 437,
441 (1987). Thus, unless otherwise authorized by statute, the types of costs that may be awarded
under Federal Rule of Civil Procedure 54(d) are limited to those enumerated in 28 U.S.C. § 1920.
Id.; see also Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997, 2001 (2012).
Section 1920, Taxation of costs, provides:
A judge or clerk of any court of the United States may tax as costs the following:
(1) Fees of the clerk and marshal;
(2) Fees for printed or electronically recorded transcripts necessarily obtained for use
in the case;
(3) Fees and disbursements for printing and witnesses;
(4) Fees for exemplification and the costs of making copies of any materials where
the copies are necessarily obtained for use in the case;
(5) Docket fees under section 1923 of this title;
(6) Compensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.
A bill of costs shall be filed in the case and, upon allowance, included in the
judgment or decree.

PHI, Inc. v. Office & Professional Employees Int’l Union, 440 F. App’x 394, at *397 n.3 (5th Cir. 2011).
2

The federal Defendants’ initial Bill of Costs sought $101,270.23, which included $978.21 for
certain transcript costs. Defendants informed the Court that invoices for these transcripts were no longer
maintained in hard copy and would need to be retrieved from microfilm, and that Defendants would
supplement the Bill of Costs with the receipts. Defendants later informed the Court that copies of the
receipts were not retrieved, and have withdrawn the request for reimbursement of those costs. Docket no.
362.

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28 U.S.C. § 1920.
A. fees for printed or electronically recorded transcripts
Defendants seek $27,869.14 in “fees for printed or electronically recorded transcripts
necessarily obtained for use in the case.” This amount includes numerous deposition and transcript
costs.
1. expedited hearing transcript
Defendants seek $16.20 for the cost of an expedited transcript of the August 19, 2008
telephonic hearing. At this hearing, the Court ruled that discovery would be stayed pending a ruling
on dispositive motions, and issued deadlines for responding and replying to pending dipositive
motions. Defendants’ attorneys participated in the hearing and have not demonstrated that a copy
of this transcript, much less an expedited copy, was necessarily obtained for use in the case as
opposed to convenience. This cost is disallowed.
2. deposition transcripts and certified copies of deposition transcripts
Defendants seek costs for a number of original deposition transcripts and certified copies.
Contrary to Plaintiffs’ argument, depositions need not be shown to be necessary for or used in
conjunction with summary judgment to be recoverable under § 1920(2). Rather, a deposition is
necessarily obtained for use in the case “[i]f, at the time the deposition was taken, a deposition could
reasonably be expected to be used for trial preparation, rather than merely for discovery.” Fogleman
v. ARAMCO, 920 F.2d 278, 285 (5th Cir. 1991); Copper Liquor v. Adolph Coors Co., 684 F.2d 1087,
1099 (5th Cir.1982) (“While some cases hold that the costs of depositions are taxable only if they
were either introduced in evidence or used at trial in examining or impeaching witnesses, the more
equitable as well as more practical view is to allow the recovery of such expense if the taking of the
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deposition is shown to have been reasonably necessary in the light of facts known to counsel at the
time it was taken.”).
However, as pointed out by Plaintiffs in their objections, Defendants are seeking costs for
two copies of almost all of the depositions - one for the U.S. Attorney’s Office in the Western
District of Texas and one for the Department of Justice in Washington, D.C. (“Main Justice”). The
cost for a copy of a deposition is taxable only if the copy was necessarily obtained for use in the case,
and defendants bear the burden of establishing necessity. J.T. Gibbons, Inc. v. Crawford Fitting Co.,
760 F.2d 613, 615 (5th Cir. 1985).
Because the attorneys are all supervised and directed by the Attorney General, they may be
treated as a single law firm for purposes of costs. See 28 U.S.C. § 519. As Plaintiffs note, costs for
duplicate transcripts for lawyers in the same firm are generally considered to be for the attorneys’
convenience rather than necessary for use in the case. Even if the U.S. Attorney’s office for the
Western District of Texas and Main Justice are more appropriately viewed as separate firms, courts
have often disallowed multiple copies of depositions on the presumption that they were obtained for
convenience of counsel, absent a showing that multiple copies were necessary. See, e.g., Chenault
v. Dorel Industries, No. A-08-CA-354-SS, 2010 WL 3064007, at *3 (W.D. Tex. Aug. 2, 2010).
Plaintiffs objected to the fact that Defendants were seeking two copies of the depositions, and
Defendants have not replied with evidence or argument that the second copies were necessary as
opposed to merely for convenience. Accordingly, the Court will award costs for only one copy of
deposition transcripts. The Court has reviewed the list of deposition transcripts and finds that all of
the depositions were necessarily obtained for use in the case. Therefore, the costs of original

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deposition transcripts or a single copy will be allowed.3
However, the $168.50 cost for the certificate of non-appearance for Plaintiff L.M.V.F. will
not be allowed because a certificate of non-appearance is not a deposition transcript and is not
authorized by § 1920. Shaw v. Hardberger, No. SA-06-CV-751-XR, 2010 WL 1424726, at *2
(W.D. Tex. Apr. 7, 2010) (“Section 1920 does not authorize costs for certificates of
nonappearance.”) (citing Canion v. United States, No. EP–03–CA–0347–FM, 2005 WL 2216881,
at *3 (W.D. Tex. Sept. 9, 2005)).
Plaintiffs argue that all requested charges for Main Justice’s copies of depositions, a total of
$13,442.71, should be disallowed. However, not all of Main Justice’s requested deposition transcript
costs were copies, though most are. The invoices indicate that the costs of transcripts of the
depositions of Dr. Lewis ($1,604.00), Dr. Ayoub ($2,368.71), and Nathalie Lummert ($455.40)
incurred by Main Justice are the costs of original transcripts, not copies. Further, only Main Justice
requests costs for a copy of Jose Gonzalez’s deposition ($553.20). Thus, these deposition transcript
costs are allowed for Main Justice. However, it is this Court’s routine practice to disallow costs such
as delivery costs that are not directly related to the preparation of the transcript. Accordingly, the
Court disallows the following costs: $7.50 delivery fee for Dr. Lewis’s deposition and $181.21 for
“DepoLaunch (Digitized bundle)” and “Original Compliance and Delivery” for Dr. Ayoub’s

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The Court notes that it is difficult to discern in some cases which is the original and which is the
copy, and in some cases Defendants appear to have obtained only copies. For example, the transcript of
E.A.F.F.’s deposition is billed as a copy to both the local U.S. Attorney’s office and Main Justice and is the
same cost for each ($128.10). In such instances, the Court has awarded the cost of one copy to the local U.S.
Attorney’s office and has not awarded the cost to Main Justice. The Court has done so simply as a matter
of administrative convenience and makes no determination as to which party should be allocated the costs.
Otherwise, the Court has allocated the cost of the original deposition transcript to the party submitting that
invoice, and disallowed the cost of a certified copy.

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deposition. Defendants are therefore awarded $4,792.60 for deposition transcript costs incurred by
Main Justice.
With regard to the deposition transcript costs requested by the U.S. Attorney’s Office for the
Western District of Texas, the following are not allowed in their entirety because they are copies:
$345.15 for a copy of Nathalie Lummert’s deposition; $1,451.94 for a copy of Dr. Ayoub’s
deposition, and $991.70 for a copy of Dr. Lewis’s deposition. As noted, the $168.50 for the
certificate of non-appearance at deposition for L.M.V.F. is not allowed. Deposition costs are
therefore reduced by $2,957.29.
In addition, the Court reduces the costs of the other depositions by the following amounts:
$66.75 for digital transcript/exhibits and delivery for Dr. Winkel’s deposition; $171.75 for digital
transcript/exhibits, summary, and delivery for Dr. Weiss’s deposition; $113.50 for word index,
condensed transcript, e-transcript, and shipping for Don Rains’ deposition; $106.50 for word index,
condensed transcript, e-transcript, and shipping for Maggie Gaytan’s deposition; $144.50 for word
index, ASCII, TC, e-transcript, and shipping for Hector Amaya’s deposition, $126.50 for word
index, ASCII, TC, e-transcript, and shipping for Efraen Garcia’s deposition; $65 for word index, etranscript, and shipping for Lesvia Monreal’s deposition; $40 for word index and delivery charges
for O.B.’s deposition; $65 for litigation CD, word index, and delivery charges for Hilary Chester’s
deposition; $65 for litigation CD, word index, and delivery charges for Tsegaye Wolde’s deposition;
$65 for litigation CD, word index, and delivery charges for James De La Cruz’s deposition; $65 for
litigation CD, word index, and delivery charges for Maureen Dunn’s deposition; $50 for a litigation
CD and word index for E.H.C.’s deposition; $65 for litigation CD, word index, and delivery charges
for J.A.A.L.’s deposition; $50 for litigation CD and word index for O.E.F.’s deposition; $65 for
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litigation CD, word index, and delivery charges for W.O.G.’s deposition; $50 for litigation CD and
word index for J.C.C.B.’s deposition; $65 for litigation CD, word index, and delivery charges for
J.M.R.’s deposition; $65 for litigation CD, word index, and delivery charges for O.B.’s deposition;
$50 for litigation CD and word index for E.R.R.J.’s deposition; $65 for litigation CD, word index,
and delivery charges for D.A.E.F.’s deposition; $50 for litigation CD and word index for P.A.S.G.’s
deposition. This is a total reduction of $1,669.50.
This results in a total award for transcripts, deposition transcripts, and copies of depositions
to the Western District U.S. Attorney’s office of $9,783.44 ($14,426.43 - $16.20 - $2,957.29 $1,669.50).
B. fees for exemplification and copies of papers necessarily obtained for use in the case
Defendants further seek “fees for exemplification and copies of papers necessarily obtained
for use in the case” in the amount of $65,067.09. This amount includes two bills for $64,957.33 and
$109.76 listed as “scanning of ORR documents for production.”4 Defendants state that the invoices
reflect “the fees paid for scanning ORR documents for electronic production in this case.” On April
23, 2014, this Court issued an Order concluding that Defendants could recover costs for scanning
documents and other activities equivalent to “making copies” in conjunction with their discovery
production. The Court found that the copies were obtained for use during trial or trial preparation
and thus were necessarily obtained for use in the case. However, the Court requested supplemental
briefing to clarify the nature of the costs incurred. See docket no. 363. Defendants have filed the
requested supplemental briefing. See docket no. 364.
Defendants seek costs for “scanning of ORR documents for production” in the amounts of
4

ORR is the federal Office of Refugee Resettlement.

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$64,957.33 and $109.76. The smaller invoice includes two separate costs: $92.12 for “document
acquisition” described as “scan to digital image” and $17.64 for “document processing” described
as “OCR Surcharge.”5 The Court will award $92.12 for scanning, since this is equivalent to making
copies, but the Court does not award costs associated with the OCR surcharge because Plaintiffs
state that they did not agree to OCR processing.
With regard to the larger invoice, which reflects a charge of $64,957.33 for “document
processing,” the supplemental briefing and evidence indicates that the document processing charge
includes a $48,977.04 charge for scanning 408,142 pages, a $8,162.84 charge for endorsing (or
numbering) those scanned pages, and $3,285.54 in sales tax. Courts are split regarding whether
endorsing or electronic Bates-stamping is a recoverable cost. Compare Chicago Bd. Option
Exchange, Inc. v. Int’l Securities Exchange, LLC, No. 07 CV 623, 2014 WL 125937, at *9 (N.D. Ill.
Jan. 14, 2014) (“CBOE may also recover its ‘branding’ costs. Costs for bates stamping are
recoverable.”), and Friends of Tahoe Forest Access v. U.S. Dep’t of Agriculture, No. 12-cv-01876
JAM-CKD, 2014 WL 1575622, at *2 (E.D. Cal. Apr. 17, 2014) (“[C]osts related to converting e-data
from one format into another, blowbacks, and Bates stamping are valid exemplification costs.”) with
Phillips v. WellPoint Inc., No. 3:10-cv-00357-JPG-SCW, 2013 WL 2147560, at *6 (S.D. Ill. May
16, 2013) (“[A]pplying a bates stamp number, creating an image load file, and creating a
concordance-ready data load file are beyond the actual act of ‘making copies’ as allowed by the
statute.”), and Crouch v. Teledyne Continental Motors, Inc., No. 10-00072-KD-N, 2013 WL 203408,

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OCR is “[a] technology process that translates and converts printed matter on an image into a
format that a computer can manipulate . . . and, therefore, renders that matter text searchable.” Race Tires
America, Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 162 n.6 (3d Cir. 2012). OCR is generally used
to render searchable documents maintained in hard copy format and scanned into a computer. Proctor &
Gamble Co. v. S.C. Johnson & Son, Inc., No. 9:08-CV-143, 2009 WL 440543 (E.D. Tex. Feb. 19, 2009).

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at *26 (S.D. Ala. Jan. 17, 2013) (“[C]osts associated with electronic numbering or stamping are not
recoverable.”). At least two district courts in the Fifth Circuit have found that these costs are not
recoverable as part of “making copies.” See, e.g., Eolas Techs., Inc. v. Adobe Sys., Inc., 891 F. Supp.
2d 803, 806 & n.2 (E.D. Tex. 2012); Rundus v. City of Dallas, No. 3-06-CV-1823-BD, 2009 WL
3614519, at *4 (N.D. Tex. Nov. 2, 2009), aff’d, 634 F.3d 309 (5th Cir. 2011) (prevailing party not
entitled to recover costs for electronic Bates labeling or coding). The Court concludes that endorsing
is part of document processing rather than “making copies” and therefore does not allow the
endorsing costs. Accordingly, the Court awards $48,977.04 for scanning, plus $2,816.18 in sales
tax, for a total of $51,793.22 for the larger invoice.
The total award under § 1920(4) for making these copies is therefore $51,885.34.
C. witness fees
Defendants seek $40 in witness fees for Dr. Gregory Lewis. Title 28 U.S.C. § 1821(b)
provides, “A witness shall be paid an attendance fee of $40 per day for each day’s attendance. A
witness shall also be paid the attendance fee for the time necessarily occupied in going to and
returning from the place of attendance at the beginning and end of such attendance or at any time
during such attendance.” Defendants are awarded the $40 witness fee.
D. compensation of interpreters and costs of special interpretation services
Defendants seek $8,294.00 for compensation of interpreters. Section 1920(6) permits
recovery of costs for “[c]ompensation of court appointed experts, compensation of interpreters, and
salaries, fees, expenses, and costs of special interpretation services under section 1828 of this title.”
28 U.S.C. § 1920(6). In Taniguchi v. Kan Pacific Saipan, Ltd., 132 S. Ct. 1997 (2012), the Supreme
Court held that § 1920(6) applies only to oral interpretation, and does not apply to translators of
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written materials. Defendants’ invoices indicate the following interpretation services were used: oral
interpretation for Plaintiffs’ depositions ($3,960); oral interpretation during psychological exam for
E.H.C. ($200); oral interpretation during psychological evaluation of J.A.A.L. and E.A.F.F. ($1,800);
oral interpretation during psychological evaluation of O.B. and E.R.R.J. ($1,470); oral interpretation
for conference with D.A.E.F. ($8506). This amounts to a total of $8,280.00. These costs are allowed
pursuant to § 1920(6).
E. equitable considerations
The total recoverable costs in this case amount to $74,781.38. Plaintiffs assert that no costs
should be awarded, even though the federal Defendants are prevailing parties, due to various
equitable considerations. Specifically, Plaintiffs argue that costs should not be awarded because they
are indigent, their case raised matters of public importance, and the federal Defendants chose the
judgment-proof co-Defendant AFH.
Although the Court has discretion in awarding costs, the Fifth Circuit has held that “Rule
54(d)(1) contains a strong presumption that the prevailing party will be awarded costs.” Pacheco
v. Mineta, 448 F.3d 783, 793 (5th Cir. 2006). Thus, the prevailing party is “prima facie entitled to
costs,” and a denial of costs is “in the nature of a penalty.” Id. at 793-94 (quoting Schwarz v.
Folloder, 767 F.2d 125, 131 (5th Cir. 1985)). The general discretion conferred by Rule 54(d)(1) has
therefore been circumscribed by the judicially created condition that a court must articulate a good
reason for denying costs. Pacheco, 448 F.3d at 794.
In Pacheco, the Fifth Circuit noted that it “has little case law addressing this issue,” but that

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Defendants seek $864 as invoiced by the interpreter, but $14 is for parking, which does not qualify
as interpretation and is not allowed under § 1920(6).

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other circuits have invoked a wide range of reasons for withholding reasonable costs from a
prevailing party, including: “(1) the losing party’s limited financial resources; (2) misconduct by the
prevailing party; (3) close and difficult legal issues presented; (4) substantial benefit conferred to the
public; and (5) the prevailing party’s enormous financial resources.” Id. The Fifth Circuit expressly
noted that it was not deciding “whether any of these is a sufficient reason to deny costs.” Id. at 794
n.18. In fact, the Fifth Circuit has previously held that “[t]he court cannot require the prevailing
party to share costs unless the costs serve as a sanction.” Salley v. E.I. DuPont de Nemours & Co.,
966 F.2d 1011, 1017 (5th Cir. 1992); see also Gonzales v. England, 264 F.3d 1141, at *2 (5th Cir.
2001) (same); Martinez v. Ford Motor Co., 162 F.3d 1159, at *2 (5th Cir. 1998) (same).7 Thus, the
Fifth Circuit has generally been reluctant to recognize exceptions to the presumption that costs
should be awarded to the prevailing party. Assuming one of the exceptions might be recognized by
the Fifth Circuit, the losing party bears the burden of overcoming the presumption and proving that
one of the foregoing factors applies. Wheat v. R & B Falcon Workover Co., 31 F. App’x 159, at *6
(5th Cir. 2001).
Most circuit courts of appeals have held that a district court may consider a non-prevailing
party’s financial status in awarding costs. E.g., Lampkins v. Thompson, 337 F.3d 1009, 1017 (8th
Cir. 2003) (noting that the district court properly considered party’s indigency and incarceration
before assessing costs); Whitfield v. Scully, 241 F.3d 264, 273 (2d Cir. 2001) (“district courts retain
discretion to limit or deny costs based on indigency”); Chapman v. AI Transport, 229 F.3d 1012,

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In an unpublished opinion, the Court has stated that, in this circuit, “courts may, but are not
required to excuse a losing party from paying costs only if he brought suit in good faith and can demonstrate
at least one of the five factors set forth in Pacheco.” Wade v. Peterson, 416 F. App’x 354, at *2 (5th Cir.
2011). That opinion, however, is unpublished and is not precedential.

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1039 (11th Cir. 2000) (holding that a district court may, but need not, consider a party’s financial
status (upon clear proof), but should not consider the relative wealth of the parties, and the court may
not decline to award any costs at all on this basis); In re Paoli R.R. Yard PCB Litigation, 221 F.3d
449, 464 (3d Cir. 2000) (“we hold that if a losing party is indigent or unable to pay the full measure
of costs, a district court may, but need not automatically, exempt the losing party from paying costs”)
(emphasis in original).
The Fifth Circuit has not decided whether the Court may consider the non-prevailing party’s
indigency, but has held that the court may not consider the comparative wealth of the parties or the
absolute wealth of the prevailing party as a basis for reducing or eliminating a cost award. Moore
v. CITGO Ref’g & Chems. Co., L.P., 735 F.3d 309, 319-20 (5th Cir. 2013).8 District courts within
the Fifth Circuit, including this Court, have generally held that indigency is not a sufficient reason
to permit a losing party to avoid costs. See, e.g., Petri v. Kestrel Oil & Gas Properties, L.P., No. H09-3994, 2013 WL 265973, at *7 (S.D. Tex. Jan. 17, 2013) (“indigency is not a reason to permit a
losing party to avoid costs”); Shaw v. Hardberger, No. SA-06-CV-751-XR, 2010 WL 1424726, at
*1 (W.D. Tex. Apr. 7, 2010) (noting that even those proceeding in forma pauperis may be required
to pay costs); C.H. v. Folks, No. 10-CA-0114-XR, 2011 WL 3501862, at *5 (W.D. Tex. Aug. 9,
2011) (noting that the Fifth Circuit had not adopted an indigency exception and that even parties
proceeding in forma pauperis may be liable for costs as in other proceedings). The Court has
reviewed the arguments and evidence presented by Plaintiffs concerning their indigency, and
declines to exercise its discretion to deny costs to the prevailing federal Defendants on this basis.

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In an unpublished opinion, the Court has indicated that proceeding in forma pauperis is alone
insufficient to excuse costs. Calton v. City of Garland, 170 F. App’x 338, at *1 (5th Cir. 2006); see also
Washington v. Patlis, 916 F.2d 1036, 1039 (5th Cir. 1990) (affirming award of costs against IFP plaintiff).

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Plaintiffs contend that this Court should exercise its discretion to deny costs because
Plaintiffs litigated matters of public importance and the federal Defendants chose Away From Home
(“AFH”) to house them. Plaintiffs argue that the federal Defendants selected AFH and monitored
and supervised the facility while staff repeatedly sexually and physically assaulted the Plaintiffs, and
that no one disputes these facts or argues that Plaintiffs were responsible for what happened to them.
Docket no. 357 at 3. Plaintiffs argue that Defendants contracted with a company with inadequate
insurance and few sources of income other than the federal contract itself, thereby creating the
potential that people would be injured who could not be fully compensated. Because AFH was
essentially insolvent, Plaintiffs accepted $11,000 each in settlement of their claims against AFH.
Plaintiffs contend that the federal Defendants are equitably responsible for the fact that Plaintiffs
could not hold AFH fully responsible.
Plaintiffs further argue that, even though the federal Defendants prevailed, “this litigation still
raised important public issues that deserved the investigation undertaken by the attorneys on both
sides, namely the need for protection of boys from sexual predators, proper protocols for physical
contact, and adequacy of the government’s monitoring practices.” Id. Plaintiffs contend that this
litigation served the public interest by increasing awareness of the vulnerability of young boys to
sexual abuse by adults of both genders, by reminding the federal Defendants of the need to enforce
the state-required better-practice standards, and by identifying where opportunities were missed for
learning of the abuse at the earliest possible time. Plaintiffs also contend that several of their legal
claims were close, and that awarding costs might dissuade potential plaintiffs from bringing causes
of public importance in the future.
The Court does not find that the closeness of certain issues in this case warrants a denial of
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costs. The Third Circuit stated in In re Paoli R.R. Yard PCB Litigation, 221 F.3d 449, 467 (3d Cir.
2000) that “though some courts of appeals permit district courts to consider the complexity or
closeness of the legal issues involved in a case when imposing a costs award, . . . this factor is not
an appropriate one for district courts to consider.” The court reasoned that “to deny a prevailing
party costs because it was successful in prosecuting or defending against a complex legal theory
unduly punishes that party.” Id. In addition, finding that a party should be excused from costs
because the issues were close is akin to finding that the party should be excused because he brought
the litigation in good faith, and the Fifth Circuit has rejected that as a basis for denying costs. Even
if this Court has discretion to deny costs on this basis, it declines to do so.
The Court also rejects the “chilling effect” argument as a basis for denying costs. The
presumption is that all losing parties must pay costs. All parties who bring litigation must factor in
the potential of an award of costs in deciding whether to pursue litigation. The argument that an
award of costs might deter future civil rights litigants would apply in all civil rights cases, but
Congress has not exempted civil rights cases from the presumption of costs. Further, even if such
a discretionary exception were recognized, a civil rights plaintiff would not know until the close of
litigation whether the court would exercise its discretion to deny costs, and the plaintiff would still
have to decide whether to bring litigation given the possibility of costs. Thus, given the general
presumption, the Court’s decision to deny costs in this case should have little effect on a future
party’s decision to pursue litigation so long as there is a presumption to award costs and a denial of
such costs is purely discretionary.
The Court further declines to deny costs based on a public interest exception or on the federal
Defendants’ asserted culpable conduct. The Court has found in favor of the federal Defendants on
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Plaintiffs’ claims asserting that they are liable for their own conduct in selecting and supervising
Away From Home, and the circumstances do not warrant creating an equitable exception for denying
costs based on that same conduct. Plaintiffs are liable for the prevailing party’s costs regardless of
whether they are able to recover from other defendants. And while the issues litigated here were
important, the Court finds that, like the fact that Plaintiffs acted in good faith and the issues were
complex, that importance is insufficient for the Court to conclude that costs should be disallowed.
Last, Plaintiffs ask the Court to apportion costs among Plaintiffs. However, all Plaintiffs
asserted primarily the same claims, and Plaintiffs have provided no legal or factual basis for
apportioning costs among them.
Conclusion
In sum, $74,781.38 in costs are awarded to Defendants as follows:
(1) $4,792.60 to Main Justice for deposition transcripts and copies of depositions;
(2) $9,783.44 to the U.S. Attorney’s Office for the Western District of Texas for deposition
transcripts and copies of depositions;
(3) $51,885.34 for making copies for discovery production;
(4) $40 for witness fees; and
(5) $8,280 for interpretation services.
SIGNED this 22nd day of May, 2014.

_________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

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