The Honorable Sidney H. Stein, of the United States District Court for the Southern *

District of New York, sitting by designation.

08-2426-cv

Moore v. Andreno 

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

August Term 2008

(Argued June 17, 2009 Decided July 27, 2009) 

Motion Decided November 2, 2009)

Docket No. 08-2426-cv

RICHARD B. MOORE,

Plaintiff-Appellee,

– v. –

THE COUNTY OF DELAWARE, JOSEPH A. ANDRENO, Delaware County Deputy Sheriff, and 

KURT R. PALMER, Delaware County Deputy Sheriff,

Defendants-Cross-Claimants-Appellants.

Before CABRANES and HALL, Circuit Judges, and STEIN, District Judge.

*

By Order dated July 27, 2009, this Court reversed the district court’s denial of Appellants’

motion for summary judgment and entered judgment in Appellants’ favor. Appellants, as the

prevailing parties, now move for an award of costs pursuant to Fed. R. App. P. 39. For the reasons

set forth below, we deny that motion, and we clarify that, while an award of costs to a prevailing

party pursuant to Rule 39 is customary, this Court retains discretion to deny costs when, in the

exercise of its discretion, it determines taxation is not appropriate.
Frank W. Miller, The Law Firm of Frank W. Miller, East Syracuse, NY, for

plaintiff-appellee.

Catherine E. Stuckart, Binghamton, NY, for defendants-appellants.

PER CURIAM:

Defendants-cross-claimants-appellants Joseph A. Andreno, Kurt R. Palmer, and the

County of Delaware (collectively, “appellants”), as prevailing parties before this Court, see

Moore v. Andreno, 08-2426-cv, 2009 U.S. App. LEXIS 16452 (2d Cir. July 27, 2009), now move

to recover costs incurred in litigating their appeal. See Fed. R. App. P. 39. Plaintiff-appellee

Richard B. Moore has filed objections to that motion, contending principally that costs should

not be imposed because Moore is “nearly destitute.” 

Because we find that equitable considerations militate against taxing costs against Moore,

we deny appellants’ motion. We write briefly to clarify that, while an award of costs to a

prevailing party pursuant to Rule 39 is a customary and often routine procedure, this Court

retains discretion to deny costs when, in the exercise of its discretion, it determines taxation is

not appropriate.

I. Background

While the full factual and procedural history of this action has been comprehensively

detailed by two panels of this Court, Moore v. Andreno, 505 F.3d 203, 205-07 (2d Cir. 2007);

Moore, 2009 U.S. App. LEXIS 16452, at *1-7, we revisit that history here only insofar as it is

relevant to the instant motion. 
This action stems from a warrantless search of Moore’s personal study conducted by

appellants Andreno and Palmer, both Delaware County Deputy Sheriffs, in April 2002. That

search uncovered evidence of drugs and drug paraphernalia which lead to Moore’s indictment on

several counts of possession of a controlled substance. Moore, 505 F.3d at 205-06. A state court

subsequently suppressed that evidence and dismissed the indictment. Id. at 206-07. 

Moore then initiated this action asserting claims pursuant to 42 U.S.C. §§ 1981, 1983,

1985 and state law. Appellants moved for summary judgment in their favor, contending that

even if Moore’s constitutional rights had been violated by the search, the Deputy Sheriffs were

entitled to qualified immunity. The United States District Court for the Northern District of New

York (Thomas J. McAvoy, Judge) denied that motion, but a panel of this Court reversed, finding

that while appellants’ search violated Moore’s constitutional rights, those rights were not clearly

established at the time of the violation. Id. at 214-16. 

On remand, however, rather than entering judgment in appellants’ favor, the district court

entertained a new theory of Moore’s case involving a different constitutional violation, one that

Moore contended was clearly established at the time of the search. Appellants again moved for

summary judgment, the district court again denied that motion, and this Court again reversed,

finding that appellants were entitled to qualified immunity and the entry of judgment in their

favor. Moore, 2009 U.S. App. LEXIS 16452, at *10.

Appellants now move to recover taxable costs pursuant to Rule 39 as the prevailing

parties and have submitted a verified bill of costs to the Clerk of Court seeking reimbursement in

the amount of $2,572.18. Moore filed timely objections to that bill of costs, see Fed. R. App. P.

39(d)(2) , arguing that taxation would be unduly burdensome given his limited financial

resources. Alternatively, Moore argues that an award of costs to appellants would improperly
chill future litigation of section 1983 claims, thereby preventing citizens such as Moore from

seeking justice in the federal court system.

II. Discussion

Federal Rule of Appellate Procedure 39 governs the taxation of appellate costs,

providing, as a general rule, that a party prevailing on appeal may recover costs from its

adversary. Pursuant to that Rule, a prevailing party seeking to recover allowable costs must file

an itemized and verified bill of costs with the Clerk of Court. Fed. R. App. P. 39(d)(1). Before

the Clerk may approve costs, however, Rule 39(d)(2) entitles an opposing party to file objections,

and losing parties commonly object to specific costs they contend are not properly taxable. See,

e.g., Phansalkar v. Andersen, Weinroth & Co., L.P., 356 F.3d 188 (2d Cir. 2004); Maida v.

Callahan, 148 F.3d 190 (2d Cir. 1998). Moore’s objections, however, are of a different variety. 

Rather than challenging specific costs, Moore concedes the costs sought by appellants are

allowable but instead seeks to avoid taxation altogether on equitable grounds. 

While we have not had frequent occasion to address taxation pursuant to Rule 39 in any

detail, we have previously found that a prevailing party is presumptively entitled to an award of

costs. Furman v. Cirrito, 782 F.2d 353, 354 (2d Cir. 1986); see also 20A James Wm. Moore et

al., Moore’s Federal Practice § 339.20 (3d ed. 2008) (“In general, costs are awarded to the

prevailing party and taxed against the losing party.”). As we have explained, an award of costs is

the rule, not the exception, because costs are considered “an incident of judgment” rather than a

“punitive measure.” Furman, 782 F.2d at 354. 

Nonetheless, we have also observed that the Rule affords “wide discretion in the taxation

of costs,” including discretion to deny costs altogether. DLC Mgmt. Corp. v. Town of Hyde Park,

179 F.3d 63, 64 (2d Cir. 1999). That finding both comports with the plain language of the Rule
which provides for an award of fees “unless . . . the court orders otherwise,” Fed. R. App. P.

39(a), and mirrors the findings of several other Circuit Courts of Appeals that have recognized

the discretionary nature of Rule 39. See, e.g., Tung Mung Dev. Co. v. United States, 354 F.3d

1371, 1381-2 (Fed. Cir. 2004) (“[Rule 39] . . . leaves the awarding of costs to the discretion of

the court . . . . No decision of the Supreme Court or of our own court requires that costs be

routinely awarded to the prevailing party.”); Golden Door Jewelry Creations v. Lloyds

Underwriters Non-Marine Ass’n, 117 F.3d 1328, 1341 (11th Cir. 1997) (“Rule 39(a) places

discretion in the appellate court.”); McDonald v. McCarthy, 966 F.2d 112, 115 (3d Cir. 1992)

(“In ordering that each party bear its own ‘costs’ this court was clearly and properly exercising its

discretion under Rule 39(a).”); Square Constr. Co. v. Wash. Metro. Area Transit Auth., 800 F.2d

1256, 1266 (4th Cir. 1986) (“Under [Rule 39], an appellate court has wide discretion in the

taxation of costs . . . .”); Kelly v. Metro. County Bd. of Educ., 773 F.2d 677, 681 n.4 (6th Cir.

1985) (“While Fed. R. App. P. 39(a) sets forth general guidelines for the award of costs on

appeal . . . it also allows the appellate tribunal wide discretion in reimbursing a party for its

expenses.”).

 As a preliminary matter, we reaffirm that while an award of costs to a prevailing party is

the norm and not the exception, Rule 39 nonetheless affords this Court discretion to deny costs

even if otherwise properly taxable. In exercising that discretion—which this Court has

previously described as “equitable” in nature, Furman, 782 F.2d at 355—we look to many of the

same factors that guide a district court’s equitable discretion in awarding or denying costs

pursuant to Fed. R. Civ. P. 54. Id. While we do not and need not compile an exhaustive list of

those factors here, denial of costs may be appropriate where a losing party can demonstrate

misconduct by a prevailing party, the public importance of the case, the difficulty of the issues
6

presented, or its own limited financial resources. Whitfield v. Scully, 241 F.3d 264, 270 (2d Cir.

2001); see also Transatlantic Marine Claims Agency, Inc. v. Ace Shipping Corp., 109 F.3d 105,

111 (2d Cir. 1997) (denying costs to prevailing party to “emphasize” the Court’s disapproval of

“[the prevailing party’s] cavalier disregard of earlier proceedings in this case”). 

Exercising that discretion in light of the facts presented by this case, we determine that

equitable considerations warrant denying appellants’ request to recover costs. In particular,

Moore’s meager financial resources and his good faith prosecution of claims alleging

government misconduct by appellants—misconduct significant enough to convince a state trial

judge to suppress evidence and to lead a panel of this Court to find a constitutional

violation—counsel in favor of requiring appellants to bear their own costs. 

III. Conclusion

Accordingly, appellants’ motion to recover costs pursuant to Rule 39 is denied.