UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

PATRICIA A. ALLEN, : : Plaintiff, : Civil Action No.: 18-1214 (RC) : v. : Re Document No.: 205 : JANET YELLEN, Secretary of the Treasury, : : Defendant. :

MEMORANDUM OPINION

GRANTING DEFENDANT’S BILL OF COSTS

I. INTRODUCTION

Plaintiff Patricia Allen (“Ms. Allen”), brought an action against Defendant, the Secretary

of the Treasury, Janet Yellen, in her official capacity. Ms. Allen alleged that her employer, the

United States Bureau of Engraving and Printing (collectively, the “Government”) subjected her

to a hostile work environment in violation of Title VII of the 1964 Civil Rights Act (“Title VII”),

42 U.S.C. § 2000e, et seq. Amended Complaint (“Am. Compl.”), ECF No. 12 ¶ 2. On

November 9, 2022, a jury verdict was entered, and the Court returned a judgment in favor of the

Government. Judgment on the Verdict (“Judgment”), ECF No. 178. Ms. Allen subsequently

filed a motion for judgment as a matter of law or a new trial in the alternative, which the Court

denied on June 9, 2023. See Plaintiff’s Motion for a Directed Verdict as a Matter of Law

Alternative for a New Trial (“Pl.’s Mot.”), ECF No. 179; Allen v. Yellen, No. 18-cv-1214,

, at *16 (D.D.C. June 9, 2023). The Government then filed a Bill of Costs for

$8,775.80. See Itemization of Costs (“Itemization”), ECF No. 205-2 at 1–2. Ms. Allen opposed

the Bill of Costs, arguing that imposing costs would be a financial hardship on her counsel and

would have a chilling effect on civil rights litigation. See Plaintiff’s Opposition and Objection to Defendant [sic] Request for Bill of Costs (“Pl.’s Opp’n”), ECF No. 206 ¶¶ 2–7. For the reasons

set forth below, the Court grants the costs in their entirety.

II. BACKGROUND

Ms. Allen filed a complaint against the Secretary of Treasury in May 2018 alleging

employment discrimination under Title VII; she later amended her complaint in October 2018. 1

Am. Compl. Prior to trial, the Court held three pretrial conferences and made evidentiary rulings

on the record. September 19, 2022, Pretrial Conference Transcript (“Sept. 19 Pretrial Tr.”), ECF

No. 159; October 24, 2022, Pretrial Conference Transcript (“Oct. 24 Pretrial Tr.”), ECF No. 163;

October 26, 2022, Pretrial Conference Transcript (“Oct. 26 Pretrial Tr.”), ECF No. 169. A jury

trial began on November 1, 2022.

On November 9, 2022, the trial concluded with the jury ruling in favor of the

Government, and the Court entered a judgment to that effect. See Judgment. Ms. Allen then

filed a motion for judgment as a matter of law, or, in the alternative, a new trial. See Pl.’s Mot.

The Court denied Ms. Allen’s motion because “the jury had ample grounds at trial to find that

Ms. Allen did not meet her burden of proof.” See Allen,

, at *1.

The Government now seeks to recover costs of $8,775.80 under Federal Rule of Civil

Procedure 54(d) and Local Rule 54.1 for five deposition transcripts, seven days of trial

transcripts, and three pretrial conference transcripts. 2 See Defendant’s Notice of Bill of Costs

(“Def.’s Bill of Costs”), ECF No. 205 at 1; Fed. R. Civ. P. 54(d); Local Rule 54.1(d); Itemization

1 When Ms. Allen filed the Complaint, the Secretary of Treasury was Steven Mnuchin. See Am. Compl. at 1. 2 Ms. Allen, in her opposition, added an additional deposition to the list the Government submitted, so the costs Ms. Allen discussed in her opposition are inflated to $9,497.80. See Pl.’s Opp’n ¶ 10. Because the Government submitted an itemization of costs with receipts, explicitly detailing the breakdown of the costs, the Court will use $8,775.80 as the value of costs. See Itemization at 1–2.

2 at 1–2. Specifically, the Government asks the Court to tax costs for the deposition transcripts of

Patricia Allen, Jessica Gonzalez, Rachelle Wright Sutton, Sireda Foster, and Sgt. Keith

Anderson. See Itemization at 1. The Government asserts that the deposition transcripts were

necessary to “prepare for the trial.” See Def.’s Bill of Costs at 1. The Government similarly

states that the trial transcripts were necessary to “brief an opposition” to Ms. Allen’s motion for

judgment as a matter of law or a new trial. See

The Government calculated the costs using

the maximum ordinary rate of $3.65. See Itemization at 1.

Ms. Allen opposed the Bill of Costs arguing that imposing costs would be a financial

hardship on her counsel and would have a chilling effect on Title VII litigation. See Pl.’s Opp’n

¶¶ 2–7. Ms. Allen argued that the Government can “absorb the cost,” while neither Ms. Allen,

nor her counsel—who is representing Ms. Allen pro bono—can afford the cost. See

Ms.

Allen did not attach documentation to her opposition to support her assertion of financial

inability. See

Ms. Allen’s only indication of her finances comes from statements that she is a

“government salary employee” and is “without resources to contribute to Defendant’s cost.” See

id. ¶¶ 2, 6. Further, Ms. Allen argues that taxing costs will “discourage future litigations by solo

practitioners” who represent civil rights plaintiffs pro bono. See id. ¶ 5. Ms. Allen, therefore,

urges the Court to exercise discretion and deny the Government’s request for costs. See id. ¶¶ 9–

10. In the alternative, Ms. Allen requests that the Court grant an “installment payment

arrangement.” See id. ¶ 11.

III. LEGAL STANDARD

The Federal Rules of Civil Procedure state, “[u]nless a federal statute, these rules, or a

court order provides otherwise, costs—other than attorney’s fees—should be awarded to the

prevailing party.” Fed. R. Civ. P. 54(d)(1). “The ‘costs’ capable of recoupment under Rule

3 54(d)(1) are listed in

.” In re Paoli R.R. Yard PCB Litig.,

, 457

(3rd Cir. 2000) (quoting Smith v. Se. Pa. Transp. Auth.,

, 99 n.1 (3rd Cir. 1995)).

enumerates costs including “[f]ees for printed or electronically recorded

transcripts necessarily obtained for use in the case.”

(2). The Local Rules

further require that deposition transcripts be “used on the record, at a hearing or trial” and that

trial transcripts be necessary for appeal or “required by the court to be transcribed” when taxing

transcripts. See Local Rule 54.1(d)(6)–(7). Taxing costs under “[R]ule 54(d) comprises two

elements: (1) a heavy presumption favoring an award of costs to the prevailing party, and (2) a

measure of clerical and judicial discretion to order ‘otherwise.’” Sun Ship, Inc. v. Lehman,

, 1314–15 (D.C. Cir. 1981).

There is a strong presumption in favor of awarding costs to the prevailing party, as

“liability for costs is a normal incident of defeat.” Delta Air Lines, Inc., v. August,

(1981); see also Marx v. Gen. Revenue Corp.,

(2013). But, “[t]he award

of costs to the prevailing party is not automatic . . . because the rule is qualified by the phrase

‘unless the court otherwise directs.’” Moore v. Nat’l Ass’n of Sec. Dealers, Inc.,

(D.C. Cir. 1985); see also Marx,

. Consequently, federal courts have

discretion to limit or deny costs pursuant to Rule 54(d). See Crawford Fitting Co. v. J.T.

Gibbons, Inc.,

(1987). That discretion is not unlimited, however, as “a court

may neither deny nor reduce a prevailing party's request for costs without first articulating some

good reason for doing so.” Baez v. U.S. Dep’t of Just.,

(D.C. Cir. 1982).

There are several “good reason[s]” for courts to deny costs. See

First, a court may

decline to award costs because of the non-prevailing party’s indigence. See Borum v. Brentwood

Vill., LLC., No. 16-cv-1723,

, at *13 (D.D.C. Sept. 4, 2020) (declining to tax

4 costs on plaintiffs in a class action who demonstrated inability to pay through income and

“extenuating circumstances”). In some jurisdictions, chilling effects on civil rights litigants is a

reason to deny costs. See e.g., Stanley v. Univ. of S. Cal.,

(9th Cir. 1999)

(considering the chilling effect on civil rights litigants when declining to tax costs). An

additional ground for denying costs is based on the necessity of the items taxed. See Youssef v.

Fed. Bureau of Investigation,

(D.D.C. 2011) (declining to tax costs for

pretrial transcripts because they were not necessary to prepare for litigation). Moreover, the

burden of establishing a “good reason,” and overcoming the presumption of awarding costs in

Rule 54(d), is on the non-prevailing party. See Baez,

.

A. Financial Inability

First, to advance an argument of indigence, such that a court would decline to tax costs,

parties must present “substantial documentation of a true inability to pay.” See Guevara v.

Onyewu,

(D.D.C. 2013) (quoting Chapman v. Al Transp.,

(11th Cir. 2000)). “[U]nsubstantiated assertions of financial hardship . . . are an

insufficient basis on which to deny costs.” Johnson v. Holway,

(D.D.C.

2007); see also Moini v. Wrighton, No. 19-cv-03126,

, at *1 (D.D.C. July 7,

2022) (plaintiff could not allege indigency because no financial documentation was presented);

see also Williams v. Thresholds, Inc., No. 02-cv-9101,

, at *1 (N.D. Ill.

2003) (plaintiff alleges that he is unemployed but failed to provide any documentation, so it was

insufficient to overcome the presumption of awarding costs).

Moreover, the financial documentation must provide a comprehensive picture of the

party’s finances, including income, assets, and expenses. See Borum,

, at *13.

Thus, solely providing documentation of annual income is insufficient. See e.g., Guevara, 943

5 F. Supp. 2d at 196 (plaintiff’s documentation of an annual income less than $13,000 without

information of assets and expenses was insufficient to demonstrate indigence because “[p]laintiff

did not provide . . . an estimate of her net worth and presents an incomplete financial picture.”).

Pro bono representation is an insufficient basis to allege indigence for the purposes of

objecting to costs. See e.g., Bark v. U.S. Forest Serv., No. 12-cv-1505,

, at

*2 (D.D.C. Dec. 31, 2014) (“Although Plaintiffs are . . . receiving pro bono representation in this

case, they have neither shown that they are indigent nor demonstrated resource constraints so

severe as to prevent payment of taxed costs.”). Furthermore, an attorney’s agreement to pay a

client’s litigation costs does not impact the analysis for taxation of costs, as “that decision is

ultimately between client and counsel.” See Borum,

, at *12 (discussing

payment arrangements for costs in a class action litigation).

If the proper documentation is provided, such that indigence is established, the court may

use its discretion to deny the taxation of costs when “payment would be crippling.” See Doe v.

Garland, No. 18-cv-4,

, at *3 (D.D.C. June 3, 2022); compare N.O. By Orwig

v. About Women OB/GYN, P.C.,

, 566–68 (E.D. Va. 2020) (finding that it

would be inequitable to tax costs where plaintiff makes approximately $22,000–$30,000

annually, has extensive medical debts relating to the litigation, and serves as the primary

caretaker for her sick child); with Doe,

, at *1, 3 (finding plaintiff had a net

worth of $420,550.10, making it appropriate to tax costs even though his “monthly expenses

exceeded his income . . . .”). Even if a party establishes indigence, however, the court may still

exercise discretion and tax costs. See Bark,

, at *2. This is because “[t]he

defeated party’s ability to pay . . . is not a prerequisite to an award of costs.” See Guevara,

.

6 Additionally, the financial status of the party requesting costs is irrelevant to the inquiry,

and as such, parties’ finances are not compared when determining whether to tax costs. See

Cherry v. Champion Int’l Corp.,

(4th Cir. 1999) (“Rule 54(d) does not

contemplate a court basing awards on a comparison of the parties’ financial strengths.”). This

principle applies even when the United States government is the prevailing party because “nearly

all parties will have disparate economics compared to the federal government.” See Bark,

, at *2. Courts, therefore, do not consider the difference in the parties’ finances

because shielding parties from costs when the government prevails would “insulate all litigants

who lose to the government from the Rule 54(d) cost-shifting presumption.” See

B. Chilling Effects on Civil Rights Litigation

Another factor some circuits consider when exercising discretion and denying costs is the

chilling effect on civil rights litigation, including Title VII litigation. Courts in this circuit,

however, “have generally rejected” the argument that taxing costs in civil rights cases will have a

chilling effect on civil rights litigation. See Youssef,

(declining to

consider chilling effects when taxing costs to a Title VII plaintiff); see also Long v. Howard

Univ.,

(D.D.C. 2008) (“costs are routinely awarded to prevailing

defendants in civil rights cases.”). The rationale is that Rule 54(d) serves an important function

of discouraging frivolous civil rights lawsuits. See Thomas v. George Washington Univ.,

(D.D.C. 2003) (finding that awarding costs, even for civil rights plaintiffs,

advances the goal of chilling “baseless” claims).

Nevertheless, at least one circuit—the Ninth Circuit—recognizes chilling effects on civil

rights litigation as a basis to deny costs. But even in the Ninth Circuit, possible chilling effects

do not automatically defeat the presumption of awarding costs in all civil rights cases. See Ass’n

7 of Mexican-Am. Educators v. California,

, 591, 593 (9th Cir. 2000) (denying costs

where the total exceeded $200,000 in an “extraordinary, and extraordinarily important, case”

while maintaining that the presumption of awarding costs applies in civil rights cases). Indeed,

the Ninth Circuit has also found that “relatively small” awards, such as “a sum” of $5,310.55,

may not “chill” civil rights litigants. See Save Our Valley v. Sound Transit,

(9th Cir. 2003).

C. Necessity of Deposition and Trial Transcripts

When a prevailing party seeks costs for transcripts, courts consider whether the

transcripts were necessary for litigation. See Doe,

, at *4;

(2). The local rules require that the depositions be “used on the record, at a hearing or

trial.” Local Rule 54.1(d)(6). Courts interpret the local rule to include depositions used for

“future depositions, motions, pretrial proceedings, or trial.” See Borum,

, at

*15 (quoting Sykes v. Napolitano,

(D.D.C. 2010)) (cleaned up).

Furthermore, the transcript need not have been used at trial because necessity is determined

based on what the parties thought at “the time the deposition was taken.” See Johnson,

.

Trial transcripts are necessary, according to the local rules, if used for an appeal or if the

court requires the parties obtain them. See Local Rule 54.1(d)(7). Courts have interpreted this

rule to include the use of transcripts to respond to a motion for a new trial. See Youssef,

. In Youssef, the court differentiated pretrial conference transcripts because “the

[c]ourt did not make any ruling” during the conference, and “[t]he [c]ourt memorialized its

pretrial rulings in written orders so that the parties would not have to rely on the transcripts.”

See

Therefore, the court found that the pretrial transcripts were not necessary. See

The

8 rate used to calculate transcripts is an additional consideration when evaluating their necessity.

See Johnson,

(demonstrating that the rate used in calculations was standard

through an exhibit).

IV. ANALYSIS

Here, Ms. Allen raises no argument that the Government is not the prevailing party.

Thus, the presumption of costs in Rule 54(d) applies, and Ms. Allen failed to meet her burden to

overcome that presumption. See Baez,

.

A. Financial Inability

First, Ms. Allen did not provide sufficient financial information to allege indigency. Ms.

Allen failed to support her assertions of indigence with any documentation of her finances. See

Pl.’s Opp’n. The only information Ms. Allen provided about her financial status is that she is a

“government salary employee” and is “without resources to contribute to Defendant’s cost.” See

id. ¶¶ 2, 6. Those assertions are insufficient to demonstrate indigence, however, as Ms. Allen did

not indicate what her salary is, and even if she had, she did not provide a “[]complete financial

picture” with assets and expenses. See id.; Guevara,

. Without

information on Ms. Allen’s finances, the Court cannot conclude that “payment would be

crippling,” and as such, she did not establish indigence. See Doe,

, at *3.

Furthermore, Ms. Allen’s counsel’s finances are irrelevant to her indigency for purposes

of taxing costs because an attorney’s agreement to cover costs is “between client and counsel,”

see Borum,

, at *12, and pro bono representation alone is insufficient to

establish indigence, see Bark,

, at *2. Additionally, as demonstrated in

Bark, the Government’s ability to “absorb the cost” is immaterial to Rule 54(d) because

“disparate economics compared to the federal government” is not a ground to deny costs. See

9 id.; Pl.’s Opp’n ¶ 4. Therefore, Ms. Allen did not meet her burden to overcome the presumption

of awarding costs through indigency.

B. Chilling Effects on Civil Rights Litigation

Next, Ms. Allen argued that taxing costs to civil rights plaintiffs will have a chilling

effect by “discourag[ing] future litigations by solo practitioners.” See Pl.’s Opp’n ¶ 5. This

Court follows others in this Circuit in declining to consider chilling effects when taxing costs in

civil rights cases. See Youssef,

; Long,

.

Even if the Court were to consider chilling effects, this case diverges significantly from

the instances in which the Ninth Circuit denied costs due to chilling effects. In Stanley, the

Ninth Circuit considered chilling effects when taxing costs on civil rights litigants because

“[w]ithout civil rights litigants who are willing to test the boundaries of our laws, we would not

have made much of the progress that has occurred in this nation.” See Stanley,

.

Here, in contrast, Ms. Allen’s Opposition focuses on the chilling effects for counsel, not litigants.

See Pl.’s Opp’n ¶ 5. Furthermore, the cost of $8,775.80 is lower than the cases where costs were

not awarded due to chilling effects. Compare Ass’n of Mexican-Am. Educators, 231 F.3d at 591,

593 (finding costs greater than $200,000 may chill litigants); with Save Our Valley,

(“[t]he district court might have believed that this relatively small sum—$5,310.55—would

not ‘chill’ future civil rights litigation”). Thus, even if the Court were to consider chilling

effects, Ms. Allen has not defeated the presumption of costs.

C. Necessity of Deposition and Trial Transcripts

Ms. Allen failed to address the necessity of the deposition transcripts, pretrial conference

transcripts, and trial transcripts in her opposition; nevertheless, the Court will examine their

necessity. The Government asserts that the deposition transcripts were used “to prepare for the

10 trial” and the trial transcripts were ordered “to brief an opposition to Plaintiff’s motion for

judgment as a matter of law, or, in the alternative, for a new trial.” Def.’s Bill of Costs at 1.

This assertion is supported by the Government’s use of the depositions in motion practice. For

example, the Government attached excerpts from Patricia Allen’s and Jessica Gonzalez’s

depositions to a memorandum in support of a motion in limine. Defendant’s Supplemental

Memorandum in Support of Motion in Limine, ECF No. 155-5, 155-7. Additionally, the

Government listed Patricia Allen, Sgt. Keith Anderson, Sireda Foster, Rachelle Wright Sutton,

and Jessica Gonzales as Plaintiff’s witnesses in a pretrial statement. Defendant’s Pretrial

Statement, ECF No. 119-2 at 1, 4–5, 7, 15. Thus, pursuant to Borum, the depositions were

necessary for litigation because of their use to prepare for trial. See Borum,

,

at *15.

The trial and pretrial conference transcripts were also necessary for litigation. Ms.

Allen’s motion for judgment as a matter of law or, in the alternative, a new trial, constitutes

sufficient necessity for the Government to order trial transcripts to brief an opposition. See

Youssef,

(trial transcripts used in responding to a motion for a new trial

were necessary under the local rules); Pl.’s Mot. Unlike in Youssef, the three pretrial conferences

here contained rulings on the record. See Youssef,

; Sept. 19 Pretrial Tr.;

Oct. 24 Pretrial Tr.; Oct. 26 Pretrial Tr. The Order following the September 19 pretrial

conference stated that the motions in limine were granted in part and denied in part “for the

reasons stated on the record.” See September 19, 2022, Order. Thus, that Order did not

sufficiently address the reasoning of the Court, making the transcript necessary. Additionally,

the October 24 and 26 hearings contained rulings on evidentiary issues. Oct. 24 Pretrial Tr. at 3–

4, 9–12; Oct. 26 Pretrial Tr. at 14–15. Accordingly, the pretrial conference transcripts were

11 necessary to respond to Ms. Allen’s motion. Pl.’s Mot. Thus, the trial and pretrial conference

transcripts were necessary for litigation, such that they are taxable, and the Court grants

Defendant’s Bill of Costs totaling at $8,775.80. 3

V. CONCLUSION

For the foregoing reasons, Defendant’s Bill of Costs of $8,775.80 is granted. An order

consistent with this Memorandum Opinion is separately and contemporaneously issued.

Dated: March 20, 2024 RUDOLPH CONTRERAS United States District Judge

3 The Government’s calculation of the total costs at $8,775.80 using the rate of $3.65 is accurate. Itemization at 1. As of October 2023, the maximum ordinary rate was raised to $4.00, however, the Government filed the Bill of Costs when $3.65 was the correct value. The Court also denies Ms. Allen’s request for an installment plan of the costs, as there are procedural functions through the U.S. Attorney’s Office to address repayment. See Pl.’s Opp’n ¶ 11; Defendant’s Response to Plaintiff’s Objection, ECF No. 207 at 5 n.3.

12