UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF MICHIGAN

SOUTHERN DIVISION

BRENDA J. BORUFF, o/b/o

DILLON JAY BORUFF,

 Plaintiff, CIVIL ACTION NO. 08-14585 

vs. DISTRICT JUDGE NANCY G. EDMUNDS

 MAGISTRATE JUDGE DONALD A. SCHEER 

COMMISSIONER OF 

SOCIAL SECURITY, 

 Defendant. 

___________________________/ 

MAGISTRATE JUDGE'S REPORT AND RECOMMENDATION 

RECOMMENDATION: The Court should approve the Clerk’s taxation of costs.

 * * * 

Plaintiff is a minor male child who is now nine years old. His mother, Brenda Boruff,

filed an application for Social Security Supplemental Security Income (SSI) childhood

disability benefits on his behalf on December 16, 2005, alleging incapacity due to attention

deficit hyperactivity disorder (ADHD). Benefits were denied, initially and upon

reconsideration, by the Social Security Administration. A requested de novo hearing was

held on December 13, 2007, before Administrative Law Judge Roy Rouhlac. Plaintiff and

his mother appeared and testified. In a decision dated January 23, 2008, Judge Rouhlac

determined that the Plaintiff was not entitled to childhood SSI benefits because his mental

deficiencies were not severe enough to meet or medically equal any of those found in the

Listing of Impairments. The Appeals Council declined to review that decision, and Plaintiff

commenced the instant action for judicial review of the denial of benefits. The district judge

granted Plaintiff’s Application to Proceed in Forma Pauperis, but denied his request for

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service of process by the U.S. Marshal. Plaintiff’s counsel was directed to arrange service

of the Complaint. 

In an Opinion and Order, dated August 17, 2009, this court remanded the matter to

the Commissioner for further administrative action. The order stated in pertinent part:

In the present case, the factual issues have not been resolved

and the record does not establish that Plaintiff is entitled to

benefits. And although the ALJ did not provide substantial

evidence to support his conclusions that Plaintiff has less than

marked impairment in the ‘acquiring and using information’

domain or that a GAF score of 50 is inconsistent with the

record taken as a whole, there is not compelling evidence that

Plaintiff is entitled to benefits. Therefore, for the above

mentioned reasons, pursuant to sentence four of 42 U.S.C. §

405(g), the ALJ's decision is REVERSED and REMANDED so

that the Commissioner further considers whether there is

substantial evidence in the record as a whole to support the

findings that (1) Plaintiff has less than marked impairment in

the ‘acquiring and using information’ domain, and that (2) a

GAF score of 50 is inconsistent with the record taken as a

whole.

Order of Remand at p. 19 (Docket #18).

On August 21, 2009, the Clerk of the Court taxed costs against the Defendant in the

amount of $16.64, to reimburse Plaintiff for the postage, certified fees and return receipt

expenses attendant with the service of the summons and complaint (Docket #21). The

government filed an Objection to the Clerk’s taxation of costs on August 26, 2009. 

Defendant asserts that the district court lacks subject matter jurisdiction to reimburse

Plaintiff for expenses relating to service of process by mail. He argues that the government

has only waived it’s sovereign immunity to pay for costs as enumerated in 28 U.S.C. §

1920. The matter was referred to the undersigned on September 10, 2009, for a Report

and Recommendation on the Defendant’s Objection to the Clerk’s taxation of costs.

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Federal Rule of Civil Procedure 54(d)(1) provides that “[C]osts against the United

States, its officers, and its agencies my be imposed only to the extent allowed by law.” The

relevant statute allowing the imposition of costs against the government is 28 U.S.C. §

2412(a)(1), which provides:

Except as otherwise specifically provided by statute, a

judgment for costs, as enumerated in section 1920 of this title,

but not including the fees and expenses of attorneys, may be

awarded to the prevailing party in any civil action brought by or

against the United States or any agency or any official of the

United States acting in his or her official capacity in any court

having jurisdiction of such action. A judgment for costs when

taxed against the United States shall, in an amount established

by statute, court rule, or order, be limited to reimbursing in

whole or in part the prevailing party for the costs incurred by

such party in the litigation. 

28 U.S.C. § 2412(a)(1).

Sovereign immunity limits federal courts’ jurisdiction in cases against the

government. That doctrine dictates that the sovereign cannot be sued except when it

consents to being sued. United States v. Sherwood, 312 U.S. 584, 586 (1941). A waiver

of sovereign immunity must be unequivocally expressed. United States v. Mitchell, 445 U.S.

535, 538 (1980). A prevailing party must identify a waiver of sovereign immunity in order

to proceed against the United States. If he cannot identify a waiver, the claim must be

dismissed on jurisdictional grounds. Reetz v. United States, 224 F.3d 794, 795 (6th Cir.

2000). 

 Defendant argues that Plaintiff is not entitled to taxation of costs because 28 U.S.C.

§ 1920 does not explicitly allow for the taxation of costs for fees associated with service of

process by mail. Not all categories of costs may be taxed. 28 U.S.C. § 1920 enumerates

the kinds of costs that may be taxed in any court of the United States. 

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A judge or clerk of any court of the United States may tax as

costs the following: 

 (1) Fees of the clerk and marshal; 

(2) Fees of the court reporter for all or any part of the 

stenographic transcript necessarily obtained for use

in the case; 

(3) Fees and disbursements for printing and

witnesses; 

(4) Fees for exemplification and copies of papers

necessarily obtained for use in the case; 

(5) Docket fees under section 1923 of this title; 

(6) Compensation of court appointed experts,

compensation of interpreters, and salaries, fees,

expenses, and costs of special interpretation

services under section 1828 of this title. 

A bill of costs shall be filed in the case and, upon allowance,

included in the judgment or decree. 

28 U.S.C. § 1920.

The Commissioner maintains that the absence of a statutory provision explicitly

allowing taxation of costs for service of process by mail against the United States prevents

them from being imposed on the government. Postage costs are generally not

compensable under § 1920. See El-Fadl, v. Central Bank of Jordan, 163 F.R.D. 389, 390

(D.D.C. 1995). Insofar as 28 U.S.C. § 2412(a)(1), and by reference § 1920 of that Title,

represent a waiver of sovereign immunity, Defendant asserts that they must be strictly

construed. United States v. Sherwood, 312 U.S. at 586. 

In recent years, courts have construed § 1920 to permit the recovery of fees paid

to private process servers, up to the amount that could be taxed for service of the same

process by the Marshal. The interpretation is reasonable, and relieves the Marshal’s

Service of significant burden and expense. It also serves to expedite litigation. See

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Synergistic International, L.L.C., v. Jody Fine Korman, 2007 WL 517666 (E.D. Va. 2007)

(unpublished). The same principle has been employed to extend the interpretation of the

statute to include the costs of service by mail, subject to the same limitation. Mary M. v.

North Lawrence Community School Corporation, 951 F.Supp 820, 830 (S.D. Indiana 1997),

rev’d on other grounds, 131 F.3d 1220 (7th Cir. 1997). While I have found no decision which

applies the liberal construction in a case against the government, all the reasoning, and

benefits, would be the same. Defendant has cited no case directly supportive of his

position. 

In the case at bar, Plaintiff’s attorney was ordered to arrange for service, and did so

in a reasonable and economical manner. The costs incurred are specifically designated by

the local rules of this court as taxable (See LR 54.1 and page 5 of Bill of Costs Handbook

available from the clerk’s office and the court’s website). It would be unfair to expect

Plaintiff or his counsel to absorb the costs of service. Accordingly, I recommend that the

Court approve the Clerk’s taxation of costs.

Within ten (10) days of service of any objecting party's timely filed objections, the

opposing party may file a response. The response shall address specifically, and in the

same order raised, each issue contained within the objections.

s/Donald A. Scheer

DONALD A. SCHEER 

UNITED STATES MAGISTRATE JUDGE

DATED: September 28, 2009

______________________________________________________________________

CERTIFICATE OF SERVICE

I hereby certify on September 28, 2009 that I electronically filed the foregoing paper with the Clerk of the Court

sending notification of such filing to all counsel registered electronically. I hereby certify that a copy of this paper was

mailed to the following non-registered ECF participants on September 28, 2009: None.

s/Michael E. Lang 

Deputy Clerk to 

Magistrate Judge Donald A. Scheer

(313) 234-5217

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