Second Circuit: Costs on Appeal

Pursuant to Rule 39 of the Federal Rules of Appellate Procedure an award of costs can be made to the party prevailing on an appeal.

The United States Court of Appeals for the Second Circuit ruled yesterday in Moore v. The County of Delaware that while the award of costs to the prevailing party is "the norm and not the exception," an appeals court retains the discretion to determine whether the award of costs is appropriate in a particular case. The decision can be found here.

The plaintiff sued law enforcement personnel for an illegal search. While the Second Ciruit had concluded in a prior ruling that the plaintiff's constitutional rights were violated, it also concluded that in the circumstances here the defendants were entitled to qualified immunity from suit, and, therefore, they are the prevailing party on the appeal.

In yesterday's decision the court concluded that in light of the fact that the litigation was brought in good faith by the losing party--he had shown constitutional wrongdoing--and in light of the "meager financial resources" of the losing party, it would not award costs to the prevailing party.