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Federal procedural research on costs and fees on appeal

Author: LegalEase Solutions


Whether a claim for costs and fees is viable in 9th federal circuit and what are the procedural aspects to complete to obtain them. 


In federal court, the prevailing party may claim any fees and costs authorized by statute or court rule. Some costs and fees may only be awarded at the court’s discretion. To claim attorney fees and costs at the trial court level, the prevailing party should file a motion within 14 days of the entry of the judgment, unless a motion for rehearing or other issue remains pending.  Similarly, the appellate rules provide a 14-day window after the time to move for rehearing expires, to motion for costs and fees. If there are state claims, such as in a diversity action, then costs and attorney fees are governed by state law.


Federal law – Federal Rules of Civil Procedure and trial

“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). “It is well established that, under the “American Rule,” “the prevailing litigant is ordinarily not entitled to collect a reasonable attorneys’ fee from the loser.” Pennsylvania v. Delaware Valley Citizens’ Council for Clean Air, 478 U.S. 546, 561 (1986) supplemented, 483 U.S. 711 (1987). There are exceptions to this principle, the major one being congressional authorization for the courts to require one party to award attorney’s fees to the other. Id. at 561-562.

Fed. R. Civ. P. 54(d) discusses when the claim of costs and attorney fees can be made and its procedure. Federal rules stipulate that a claim for attorney fees and costs should be made by motion filed within 14 days of entry of judgment, unless there is a rehearing petition filed, and stating the amount sought with detailed itemized and verified claims sought. Fed. R. Civ. P. 54(d)(2); 9th Cir. R. 39-1.6(a). “Untimely cost bills will be denied unless a motion showing good cause is filed with the bill.” 9th Cir. R. 39-1.4.

Federal law – Federal Rules of Appellate Procedure and appeal

Rule 39-1.1 of the 9th Circuit Court deals with the Costs on Appeal and procedure to be complied with:

39-1.1. Bill of Costs. The itemized and verified bill of costs required by FRAP 39(d) shall be submitted on the standard form provided by this Court. It shall include the following information:

(1) The number of copies of the briefs or excerpts of record reproduced; and

(2) The actual cost per page for each document.

39-1.2. Number of Briefs and Excerpts. Costs will be allowed for the required number of paper copies of briefs and one additional copy. Costs will also be allowed for any paper copies of the briefs that the eligible party was required to serve.

If excerpts of record were filed, costs will be allowed for 5 copies of the excerpts of record plus 1 copy for each party required to be served, unless the Court shall direct a greater number of excerpts to be filed than required under Circuit Rules 30-1.3 and 17-1.3.

39-1.3. Cost of Reproduction. In taxing costs for photocopying documents, the clerk shall tax costs at a rate not to exceed 10 cents per page, or at actual cost, whichever is less.

39-1.4. Untimely Filing. Untimely cost bills will be denied unless a motion showing good cause is filed with the bill.

39-1.5. Objection to Bill of Costs. If a response opposing a cost bill is filed, the cost bill shall be treated as a motion under FRAP 27.

The Clerk or a deputy clerk may prepare and enter an order disposing of a cost bill, subject to reconsideration by the Court if exception is filed within 14 days after the entry of the order.

9th Cir. R. 39-1.6

The 9th circuit court stipulates the submission for the claim of attorney fees as follows:

39-1.6. Request for Attorneys Fees.

(a) Time Limits. Absent a statutory provision to the contrary, a request for attorneys’ fees shall be filed no later than 14 days after the expiration of the period within which a petition for rehearing may be filed, unless a timely petition for rehearing is filed. If a timely petition for rehearing is filed, the request for attorneys fees shall be filed no later than 14 days after the Court’s disposition of the petition.

(b) Contents. A request for an award of attorneys fees must be supported by a memorandum showing that the party seeking fees is legally entitled to them and must be accompanied by Form 9 (appended to these rules) or a document that contains substantially the same information, along with:

(1) a detailed itemization of the tasks performed each date and the amount of time spent by each lawyer and paralegal on each task;

(2) a showing that the hourly rates claimed are legally justified; and

(3) an affidavit or declaration attesting to the accuracy of the information. All applications must include a statement that sets forth the application’s timeliness. The request must be filed separately from any cost bill.

9th Cir. R. 39-1.6.

Rule 39 of Federal Rules of Appellate Procedure Rule 39 stipulates certain rules on costs:

Rule 39. Costs

 (a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise:

(1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise;

(2) if a judgment is affirmed, costs are taxed against the appellant;

(3) if a judgment is reversed, costs are taxed against the appellee;

(4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders.

(b) Costs For and Against the United States. Costs for or against the United States, its agency, or officer will be assessed under Rule 39(a) only if authorized by law.

(c) Costs of Copies. Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by Rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying.

(d) Bill of Costs: Objections; Insertion in Mandate.

(1) A party who wants costs taxed must–within 14 days after entry of judgment–file with the circuit clerk, with proof of service, an itemized and verified bill of costs.

(2) Objections must be filed within 14 days after service of the bill of costs, unless the court extends the time.

(3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must–upon the circuit clerk’s request–add the statement of costs, or any amendment of it, to the mandate.

(e) Costs on Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule:

(1) the preparation and transmission of the record;

(2) the reporter’s transcript, if needed to determine the appeal;

(3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and

(4) the fee for filing the notice of appeal.

Fed. R. App. P. 39.

Diversity actions and state law

“In a diversity action, the question of attorney’s fees is governed by state law.” Kabatoff v. Safeco Ins. Co. of Am., 627 F.2d 207, 210 (9th Cir. 1980). California Civil Procedure Codes prescribes that “a prevailing party is entitled as a matter of right to recover costs in any action or proceeding.” Cal. Civ. Proc. Code § 1032 (b). As to attorney fees, it states:

  • 1021. Attorney’s fees; determination by agreement; right to costs

Except as attorney’s fees are specifically provided for by statute, the measure and mode of compensation of attorneys and counselors at law is left to the agreement, express or implied, of the parties; but parties to actions or proceedings are entitled to their costs, as hereinafter provided.

Cal. Civ. Proc. Code § 1021.

On the law governing fee awards, Ackerman v. W. Elec. Co., 643 F. Supp. 836 (N.D. Cal. 1986) aff’d, 860 F.2d 1514 (9th Cir. 1988) stated that the federal statute authorizing awards that is most closely analagous to the California Act is the Civil Rights Attorney’s Fees Award Act of 1976, 42 U.S.C. § 1988.” Id. at 860. Ackerman court held as follows:

Under both acts, the accepted method of fee determination is to calculate the lodestar and then apply a multiplier if appropriate. The court first determines the number of hours reasonably expended and then multiplies that number by a reasonable hourly billing rate to determine the lodestar or touchstone figure. That figure may then be adjusted upward or downward in consideration of various factors bearing on the determination of a reasonable fee.

Ackerman v. W. Elec. Co., 643 F. Supp. 836, 860 (N.D. Cal. 1986) aff’d, 860 F.2d 1514 (9th Cir. 1988) (citing Hensley v. Eckerhart, 461 U.S. 424, 433–47, 103 S.Ct. 1933, 1939–46, 76 L.Ed.2d 40 (1983); Moore v. Jas. H. Matthews & Co., 682 F.2d 830, 840 (9th Cir.1982).

The factors to be considered under federal and state law in determining reasonable attorney’s fees are similar – it is known as Kerr guidelines. Ackerman, 643 F. Supp. 836, 860 (N.D. Cal. 1986). Under Ninth Circuit precedent, federal courts are to consider the Kerr guidelines are:

“(1) the time and labor required, (2) the novelty and difficulty of the questions involved, (3) the skill requisite to perform the legal service properly, (4) the preclusion of other employment by the attorney due to acceptance of the case, (5) the customary fee, (6) whether the fee is fixed or contingent, (7) time limitations imposed by the client or the circumstances, (8) the amount involved and the results obtained, (9) the experience, reputation, and ability of the attorneys, (10) the “undesirability” of the case, (11) the nature and length of the professional relationship with the client, and (12) awards in similar cases.”


Similarly under California law courts consider the factors set forth in Serrano v. Priest, 20 Cal. 3d 25, 48, 569 P.2d 1303, 1316 (1977), including:

(1) the novelty and difficulty of the questions involved, and the skill displayed in presenting them; (2) the extent to which the nature of the litigation precluded with employment by the attorneys; (3) the contingent nature of the fee award, both from the point of view of eventual victory on the merits and the point of view of establishing eligibility for an award….

Ackerman, 643 F. Supp. 836, 860 (N.D. Cal. 1986) (citing Serrano v. Priest, 20 Cal. 3d 25, 33, 569 P.2d 1303, 1305-06 (1977)).

Perdue v. Kenny A. ex rel. Winn, 559 U.S. 542, 552, 130 S. Ct. 1662, 1672, 176 L. Ed. 2d 494 (2010) has established six important rules concerning the federal fee-shifting statutes:

“First, a “reasonable” fee is a fee that is sufficient to induce a capable attorney to undertake the representation of a meritorious civil rights case.” Id.

“Second, the lodestar method yields a fee that is presumptively sufficient to achieve this objective.” Id.

“Third, although we have never sustained an enhancement of a lodestar amount for performance, . . .  we have repeatedly said that enhancements may be awarded in “ ‘rare’ ” and “ ‘exceptional’ ” circumstances.” Id.

“Fourth, we have noted that “the lodestar figure includes most, if not all, of the relevant factors constituting a ‘reasonable’ attorney’s fee,” and have held that an enhancement may not be awarded based on a factor that is subsumed in the lodestar calculation. We have thus held that the novelty and complexity of a case generally may not be used as a ground for an enhancement because these factors “presumably [are] fully reflected in the number of billable hours recorded by counsel.” We have also held that the quality of an attorney’s performance generally should not be used to adjust the lodestar “[b]ecause considerations concerning the quality of a prevailing party’s counsel’s representation normally are reflected in the reasonable hourly rate.” Id. at 553.

“Fifth, the burden of proving that an enhancement is necessary must be borne by the fee applicant.” Id.

“Finally, a fee applicant seeking an enhancement must produce “specific evidence” that supports the award. . . . This requirement is essential if the lodestar method is to realize one of its chief virtues, i.e., providing a calculation that is objective and capable of being reviewed on appeal.” Id.