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Second Circuit Holds Costs May be Denied to Prevailing Party on Appeal

The prevailing party on appeal may be denied costs when, in a court’s discretion, taxing costs is deemed inequitable, the U.S. Court of Appeals for the Second Circuit held on November 2, 2009.

New York resident Richard Moore sued two Delaware County Deputy Sheriffs following a search of his home that turned up drugs and drug paraphernalia. Criminal charges against Moore were dropped after a state court suppressed the evidence found during the search. Ultimately, the Second Circuit determined that while the deputies had violated Moore’s constitutional rights the law was not “clearly established” at the time of the incident, thus entitling the deputies to qualified immunity.

Following another successful appeal by the defendants, the deputies moved for costs pursuant to Rule 39 of the Federal Rules of Appellate Procedure.

Recognizing that “an award of costs to a prevailing party is the norm and not the exception,” the Second Circuit held it still had the “discretion to deny costs even if otherwise taxable.”

In exercising that discretion the appellate court considered a non-exhaustive list of factors, including “misconduct by a prevailing party, the public importance of the case, the difficulty of the issues presented,” and the losing party’s “limited financial resources.”

In this case, the Second Circuit concluded that “equitable considerations” warranted denying costs to the deputies. The Court pointed to Moore’s “meager financial resources” and his “good faith prosecution of [his] claims” as reasons for its decision to deny costs.

Prisoners who lose on appeal and face assessment of costs should use similar reasoning to argue for the denial of a cost award to the defendants. See: Moore v. The County of Delaware, 586 F.3d 219 (2d Cir. 2009).

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Related legal case

Moore v. The County of Delaware