Alliance for the Wild Rockies v. Pena
Alliance for the Wild Rockies v. Pena
2019 WL 13188990 (E.D. Wash. 2019)
January 22, 2019

Peterson, Rosanna Malouf,  United States District Judge

Cost Recovery
FOIA
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Summary
The Court found that Defendants' time spent electronically copying the administrative record was taxable as costs, as the process of “making copies” includes several tasks to prepare the record for judicial review and the electronic process is more useful for the Plaintiff. The Court denied Plaintiff's Motion to Retax Costs and ordered Plaintiff to pay Defendants $5,104.50 in costs.
ALLIANCE FOR THE WILD ROCKIES, Plaintiff,
v.
JIM PENA, in his official capacity as Regional Forester of Region Six U.S. Forest Service; UNITED STATES FOREST SERVICE, an agency of the United States; and RODNEY SMOLDON, in his official capacity as Supervisor of the Colville National Forest, Defendants
NO: 2:16-CV-294-RMP
United States District Court, E.D. Washington
Filed January 22, 2019

Counsel

Brian A. Ertz, Pro Hac Vice, Ertz Law PLLC, Boise, ID, Richard Arthur Poulin, Scope Law Firm PLLC, Seattle, WA, for Plaintiff.
Rudolf J. Verschoor, United States Attorney's Office, Spokane, WA, Vanessa Ruth Waldref, US Department of Justice - ENRD, Washington, DC, for Defendants.
Peterson, Rosanna Malouf, United States District Judge

ORDER DENYING PLAINTIFF'S MOTION TO RETAX COSTS

*1 BEFORE THE COURT is Plaintiff Alliance for the Wild Rockies's Motion to Retax Costs, ECF No. 123. Alliance argues that Defendants Jim Pena, United States Forest Service, and Rodney Smoldon's (collectively, “Defendants”) Proposed Bill of Costs, ECF No. 119, includes untaxable costs. The Court has reviewed the parties' briefing and the record and is fully informed.
 
BACKGROUND
On cross-motions by the parties, this Court granted summary judgment to Defendants for all claims on October 2, 2018. ECF Nos. 117 (opinion) & 118 (judgment). On October 12, 2018, Defendants filed a proposed bill of costs for $5,104.50 pursuant to LCivR 54(d)(1). ECF No. 119. On October 26, 2018, the Clerk entered all costs submitted. ECF No. 120. That same day, Alliance filed objections to Defendants' proposed bill of costs. ECF No. 121.
 
Because costs had already been entered, Alliance later filed this Motion to Retax Costs. ECF No. 123; see also LCivR 54(d)(1)(D) (“Any party may file and serve a motion to retax costs within 7 days after the Clerk's taxation.”). Alliance argued that Defendants were only entitled to $426 in costs because the rest of the expenses were not taxable as costs under federal law. ECF No. 123 at 3. Alliance also argues that the costs are unnecessary and unreasonable. Id. at 7.
 
LEGAL STANDARD
“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). Rule 54(d)(1) creates a presumption in favor of awarding costs to the prevailing party. Draper v. Rosario, 836 F.3d 1072, 1087 (9th Cir. 2016). The burden falls on the losing party to show why costs should not be awarded. Id. The district court has discretion to determine costs. Save Our Valley v. Sound Transit, 335 F.3d 932, 944 (9th Cir. 2003).
 
DISCUSSION
Procedural Objections to Defendants' Bill of Costs
The parties dispute whether the Court should award costs for this case because of alleged misconduct by Defendants. ECF No. 123 at 2; ECF No. 124 at 8.
 
Costs should be awarded to the prevailing party unless “a court order provides otherwise.” Fed. R. Civ. P. 54(d)(1). The district court has discretion to deny costs if the prevailing party engaged in misconduct. Champion Produce, Inc. v. Ruby Robinson Co., Inc., 342 F.3d 1016, 1022 (9th Cir. 2003).
 
Alliance argues that Defendants acted with misconduct by failing to note a hearing date on the original bill for costs. ECF No. 123 at 2. A prevailing party seeking costs should note its bill of costs for a hearing scheduled for no less than 14 days after the date of service on the bill of costs. LCivR 54(d)(1)(A). Defendants admit that they did not note the bill of costs for a hearing date. ECF No. 124 at 8. According to Alliance, Defendants' failure to note the hearing date caused the Clerk to approve the bill of costs one day early, preventing Alliance from filing timely objections to the bill of costs, and forcing it to file the present motion to retax costs instead. ECF No. 123 at 3.
 
*2 While Defendants did admit to failing to note the bill of costs for a hearing date, this is not misconduct justifying a complete denial of costs. Therefore, this Court finds that Defendants are still entitled to costs notwithstanding their error and will proceed to the merits of this motion.
 

Objections to Defendants' Bill of Costs
The parties dispute whether Defendants' time spent electronically copying the administrative record is taxable as costs. ECF No. 123 at 6, ECF No. 124 at 6.
 
Costs are taxable in accordance with the local rules and certain federal statutes, including 28 U.S.C. § 1920. LCivR 54(d)(1)(C)(iv). Section 1920 allows the district court or clerk of the district court to tax as costs “[f]ees for the exemplification and costs of making copies of any materials where the copies are necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). A district court does not have authority to award costs for tasks unless those tasks are enumerated in section 1920. Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560, 565 (2012).
 
The first dispute over costs is whether the electronic preparation of the administrative record, billed as “IT Dept. / Computer Time Coding to Excel Sheet Hyperling / Disk Authorng to USDAFS Specifics,” is taxable under section 1920(4). ECF No. 119-3. According to the declaration in support of the bill of costs, work in this category included coding an excel sheet with the index of the record, converting the record from TIFF images to PDF format, making the PDF files searchable, electronically stamping the Bates numbers on the PDF files, hyperlinking the PDF files to the index, and then editing the index. ECF No. 119-4 at 2. The question is whether this labor qualifies as the “costs of making copies.” 28 U.S.C. § 1920(4).
 
Some circuit courts have held that the labor involved in creating copies of electronically-stored information (“ESI”), such as making the ESI searchable or indexing the ESI, are not taxable costs under section 1920(4). Country Vinter of N.C., LLC v. E. & J. Gallo Winery, Inc., 718 F.3d 249, 261 (4th Cir. 2013); Race Tires Am., Inc. v. Hoosier Racing Tire Corp., 674 F.3d 158, 171–72 (3d Cir. 2012). According to these circuits, the only taxable costs under section 1920(4) were the costs incurred for the actual duplication or transfer of files from one format to another or one storage unit to another, such as the conversion from TIFF to PDF or transfer of files from a computer onto a DVD. See Race Tires, 674 F.3d at 171–72.
 
At least one circuit court has found that the costs “for converting computer data into a readable format” were recoverable under section 1920(4). Hecker v. Deere & Co., 556 F.3d 575, 591 (7th Cir. 2009). Additionally, several district courts in this circuit have found that the process of compiling and preparing the administrative record is a taxable cost because it qualifies as “making copies.” Or. Nat. Desert Ass'n v. Cain, No. 3:09-CV-369-PK, 2018 WL 2440504, at *2 (D. Or. May 30, 2018); Wild v. U.S. Forest Serv., No. 1:14-CV-00981-PA, 2015 WL 4609975, at *2 (D. Or. July 31, 2015); Conservation Cong. v. U.S. Forest Serv., No. 2:09-CV-02483-GEB-DAD, 2010 WL 2557183, at *1 (E.D. Cal. July 21, 2010). These cases find that “any distinction between preparation of a digital copy and a paper copy for purposes of section 1920(4) is arbitrary and serves only to subvert the court's strong preference for the reduction of paper copies.” Sequoia Forestkeeper v. Elliot, No. 1:13-CV-1721 AWI JLT, 2015 WL 5179069, at *1 (E.D. Cal. Sept. 4, 2015).
 
*3 The Court agrees with the reasoning of Hecker and the district courts in the Ninth Circuit. As shown in Defendants' proposed bill of costs, the process of “making copies” includes several tasks to prepare the administrative record for judicial review. ECF No. 119. The process looks different from when the language of section 1920(4) was originally enacted, but the electronic process is still “making copies” within the meaning of the statute and overall is more useful for the Plaintiff by allowing the record to be searchable. The Court finds that Defendants' work in preparing the administrative record for use in litigation qualifies as “making copies” within the meaning of section 1920(4).
 
The next dispute between the parties is whether the costs were for copies “necessarily obtained for use in the case.” 28 U.S.C. § 1920(4). Alliance argues that the work done on the administrative record was not necessary because the work would have been done regardless of this case's existence. ECF No. 123 at 7. Defendants argue that this litigation required them to make the administrative record into a usable format. ECF No. 124 at 6.
 
Alliance cites 5 U.S.C. §§ 556(e) and 557(c) for the notion that a federal agency must create an administrative record for every action it takes, regardless of whether there is any court challenge to its actions. ECF No. 123 at 7. But these statutes only define what constitutes the record and what must be included in the official record. 5 U.S.C. §§ 556(e) & 557(c). Section 556(e), a statute which governs records of administrative hearings, even states that the record shall be made available to parties “on payment of lawfully prescribed costs.” 5 U.S.C. § 556(e). These statutes do not preclude Defendants from seeking costs for preparing the administrative record for litigation.
 
Alliance also cites Fla. Power & Light Co. in support of its argument that Defendants needed to prepare the administrative record regardless of this litigation. Fla. Power & Light Co. v. Lorion, 470 U.S. 729 (1985). In that case, the Supreme Court held that the federal Courts of Appeals had jurisdiction to review decisions of the Nuclear Regulatory Commission to deny citizen petitions requesting that the Commission modify, suspend, or revoke certain licenses. Id. at 745. While the case does discuss administrative records, it only discusses them to the extent that an agency's decision must be supported by the administrative record. Id. at 744. It does not hold, as Alliance claims, that agencies must create litigation-ready administrative records for every government decision. ECF No. 123 at 8. The Court finds that Defendants' work on the administrative record was necessary for the case.
 
Alliance also argues that Defendants are not entitled to costs because Defendants prepared much of the administrative record in response to Alliance's Freedom of Information Act (“FOIA”) requests. ECF No. 123 at 8–9. There is no authority supporting this argument.
 
Alliance lastly argues that the costs in this case are unreasonable and excessive. ECF No. 123 at 9. District courts in this circuit have upheld much higher costs in other challenges under the Administrative Procedure Act than the roughly $5,000 in costs that Defendants claim here. See Conservation Cong. v. U.S. Forest Serv., No. 2:12-CV-02800-TLN-CKD, 2014 WL 6612088, at *2 (E.D. Cal. Nov. 20, 2014) (upholding $9,502.12 in costs); Friends of Tahoe Forest Access v. U.S. Dep't of Agric., No. 12-CV-01876 JAM-CKD, 2014 WL 1575622, at *3 (E.D. Cal. Apr. 17, 2014) (upholding $14,875.23 in costs); Pit River Tribe v. Bureau of Land Mgmt., No. 2:04-CV-000956 JAM-JFM, 2013 WL 6185240, at *3 (E.D. Cal. Nov. 26, 2013) (upholding $19,851.60 in costs). The Court finds that the costs imposed are reasonable.
 
*4 Accordingly, IT IS HEREBY ORDERED:
1. Plaintiff's Motion to Retax Costs, ECF No. 123, is DENIED.
2. The Clerk's Taxation of Costs, ECF No. 120, is final.
3. Plaintiff shall pay Defendants $5,104.50 in costs.
 
IT IS SO ORDERED. The District Court Clerk is directed to enter this Order and provide copies to counsel.