28 USC 1920: Taxable Costs, Bill of Costs, and Objections

In federal civil litigation, the taxation of costs in federal court is the process by which the winning side recovers a narrow set of out-of-pocket expenses from the loser under 28 U.S.C. § 1920. The statute lists six categories, and the Supreme Court has said that list is exhaustive and should be read strictly, not stretched to cover everything a party spent to litigate.¹ Most of what you paid your lawyer, your experts, and your vendors will not come back to you. What does come back is worth claiming, and the process for claiming it has strict deadlines.

What You Can Recover Under Section 1920

A judge or clerk may tax exactly six kinds of costs.² Anything outside these categories is not recoverable, no matter how reasonable the expense.

Clerk and Marshal Fees

The filing fee for the complaint, fees for issuing summonses, and charges for service of process by the U.S. Marshal all qualify. Most federal circuits also allow fees paid to a private process server, but usually cap them at what the Marshals Service would have charged for the same task.

Transcript Fees

Fees for transcripts of depositions, hearings, and trial proceedings are recoverable when the transcript was “necessarily obtained for use in the case.”² A transcript ordered for the convenience of counsel, or one that was never cited in a motion or used at trial, will usually be denied. Transcripts submitted as evidence, quoted in a summary judgment brief, or ordered at the court’s direction are the clearest recoveries.

Printing Costs and Witness Fees

The third category covers two different items. Printing means the mechanical reproduction of documents the case required, such as copies of briefs, appendices, and exhibits filed with the court.

Witness fees are set by a separate statute at $40 per day of attendance, plus an attendance fee for travel time to and from the courthouse.³ Witnesses who drive receive mileage at the federal government’s official travel rate. Those who fly are reimbursed for the actual cost of the most economical fare reasonably available. Tolls, parking, and taxi fares between lodging and a transit terminal are also reimbursable for witnesses.

Copies and Exemplification

Fees for exemplification and for making copies of materials “necessarily obtained for use in the case” are recoverable.² Exemplification means creating an officially certified copy of a court record or document, sometimes required when submitting evidence from another proceeding. Copies can be paper or electronic, but each district sets its own allowable per-page rate and the amounts tend to be modest.

Docket Fees

Small fixed fees under 28 U.S.C. § 1923 may be claimed for certain procedural steps.⁴ In practice, the amounts are so small that many attorneys skip them.

Court-Appointed Experts and Interpreters

Compensation for court-appointed experts, interpreters, and special interpretation services under 28 U.S.C. § 1828 is the sixth category.² When a judge appoints an expert under Federal Rule of Evidence 706, that expert is entitled to reasonable compensation set by the court, and the cost is taxed like other statutory costs.⁵ Recovery here can be substantial because court-appointed experts are not capped at the $40-per-day rate that applies to privately retained ones. The Supreme Court has held that “interpreter” in § 1920 means someone who translates orally from one language to another, and does not include written document translation.¹

What You Cannot Recover

The list of expenses that fall outside § 1920 is far longer than the list inside it. Knowing where the boundary sits matters as much as knowing what qualifies.

Attorney fees. These are the single largest expense in most federal cases and are not taxable costs. Fees for legal counsel can only be shifted if a separate statute, a contract, or a recognized common-law exception says so. Federal Rule of Civil Procedure 54(d)(2) governs attorney fee motions as a separate process from the taxation of costs.⁶

Retained expert witness fees. You might pay a retained expert $500 an hour, but if the court did not appoint that expert, the only recoverable amount is the $40-per-day statutory witness fee.³ The Supreme Court held in Crawford Fitting Co. v. J.T. Gibbons, Inc. that a federal court is bound by the § 1821(b) limits on witness fees absent an explicit statutory override or contract.⁷ The gap between what you paid and the $40 you can recover is not taxable.

Attorney travel and office overhead. Airfare, hotels, and meals for attorneys attending depositions or trial are not taxable. Neither are postage, courier charges, supplies, and routine communications. Courts treat these as the cost of doing business. Only the statutory travel and attendance fees for non-party witnesses qualify.

Mediation and private ADR fees. Fees paid to a private mediator or for alternative dispute resolution do not appear among the six statutory categories and are not recoverable, even when the court ordered the parties to mediate.

E-Discovery Copying Costs

Modern electronic discovery can produce the largest single number on a bill of costs, and it is also where claims most often fail. A 2008 amendment to § 1920(4) confirmed that “making copies” includes electronic copies, but the scope is narrow.

The D.C. Circuit in United States v. Halliburton Co. allowed recovery for converting electronic files into production formats such as PDF or TIFF and transferring those files to portable media like USB drives. It rejected recovery for converting files into a format compatible with a review platform, subscribing to an e-discovery hosting platform, keyword searching and organizing documents, and drafting production cover letters or shipping discovery materials. The reasoning: none of those steps would have been taxable in the paper era, so software doing the same work does not change the answer.

The practical consequence is that if a vendor invoice lumps hosting, processing, and copying into one charge, you need to break out the actual copying portion. Courts routinely deny the entire line item when the documentation doesn’t separate the taxable copying from the non-taxable processing.

Costs Are Not Automatic

Even when every expense fits within § 1920, a prevailing party is not guaranteed to collect. Federal Rule of Civil Procedure 54(d)(1) says costs “should be allowed to the prevailing party,” and the Supreme Court has confirmed that this language gives district courts discretion to decline to tax any listed item.⁷⁶

Courts have used that discretion when the losing party cannot pay, when the issues in the case were close, when the prevailing party engaged in misconduct, and when the recovery was far less than what was sought. The presumption favors awarding costs, so the party opposing them typically has the burden of showing why the court should depart from the default. That discretion gets used more often than many litigants expect.

Filing the Bill of Costs

The process starts after final judgment. The prevailing party files a Bill of Costs on Form AO 133, the standardized form published by the Administrative Office of the U.S. Courts.⁸ The form requires an itemized list of expenses, organized by the six statutory categories, with supporting documentation attached.

Deadlines vary. Rule 54(d)(1) says the clerk may tax costs on 14 days’ notice, but the deadline for the prevailing party to file the Bill of Costs itself is set by each district court’s local rules. Some districts require filing within 14 days of judgment; others allow 30 days or more. Check your local rules immediately after judgment, because missing the deadline can waive the right to costs entirely.

Section 1924 also requires an affidavit, signed by the party, the attorney, or an agent, verifying that each item is correct, was necessarily incurred, and that the services were actually performed.⁹ That verification is built into Form AO 133 as a declaration under penalty of perjury.¹⁰ The completed form and all supporting receipts must be served on the opposing party at the same time they are filed.

Documentation Courts Expect

A summary spreadsheet is not enough. Every expense needs a receipt or invoice identifying the specific service, date, and amount. A court reporter’s invoice should specify which transcript was produced and for which proceeding. A copying vendor’s bill should show pages and per-page rate, not just a lump sum. Each item must connect to one of the six statutory categories, and when a vendor bill mixes recoverable and non-recoverable work, the prevailing party has to separate them out and claim only the eligible portion.

Clerk Review and Objections

The initial review is done by the Clerk of Court, not the judge. The Clerk checks whether each claimed expense falls within a statutory category and is adequately documented. This is what “taxing the costs” formally refers to. The Clerk can deny costs that go beyond the statute or lack support.

After the Clerk issues a taxation order, either party has seven days to serve a motion for the district judge to review the Clerk’s action.⁶ The judge can grant, deny, or modify the taxed amount. Objections should identify the specific items being challenged and explain why they fall outside the statute or lack support. A blanket objection that the total is too high rarely succeeds.

Costs on Appeal

Costs at the appellate level are governed by Federal Rule of Appellate Procedure 39 rather than Rule 54. A party seeking appellate costs must file an itemized and verified bill of costs with the circuit clerk within 14 days after the appellate judgment is entered.¹¹ The mandate is not delayed to wait for the cost determination; if the mandate issues first, the cost statement is added to it later.

Post-Judgment Interest

Once costs are taxed into the judgment, the losing party owes post-judgment interest on the amount under 28 U.S.C. § 1961. The rate is tied to the weekly average one-year constant maturity Treasury yield for the calendar week before judgment, and it compounds annually.¹² Interest runs from the date of judgment through the date of payment, so delays in collection work in the prevailing party’s favor.

1
Justia Law. Taniguchi v Kan Pacific Saipan Ltd, 566 US 560 (2012)
2
Office of the Law Revision Counsel. 28 US Code 1920 – Taxation of Costs
3
Office of the Law Revision Counsel. 28 US Code 1821 – Per Diem and Mileage Generally; Subsistence
4
Office of the Law Revision Counsel. 28 US Code 1923 – Docket Fees and Costs of Briefs
5
Legal Information Institute. Federal Rules of Evidence Rule 706 – Court-Appointed Expert Witnesses
6
Legal Information Institute. Federal Rule of Civil Procedure 54 – Judgment; Costs
7
Justia Law. Crawford Fitting Co v J T Gibbons Inc, 482 US 437 (1987)
8
United States Courts. Bill of Costs (District Court)
9
Office of the Law Revision Counsel. 28 US Code 1924 – Verification of Bill of Costs
10
United States Courts. AO 133 Bill of Costs
11
Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs
12
United States Courts. 28 USC 1961 – Post Judgment Interest Rates