No. 14-1012

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IN THE UNITED STATES COURT OF APPEALS

FOR THE TENTH CIRCUIT

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EQUAL EMPLOYMENT OPPORTUNITY COMMISSION,

Plaintiff-Appellee,

BEVERAGE DISTRIBUTORS COMPANY, LLC,

Defendant-Appellant.

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On appeal from the United States District Court

for the District of Colorado

Hon. Christine M. Arguello, United States District Judge

No. 11-cv-2557

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APPELLEE’S RESPONSE TO APPELLANT’S BILL OF COSTS

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P. DAVID LOPEZ EQUAL EMPLOYMENT

General Counsel OPPORTUNITY COMMISSION

Office of General Counsel

CAROLYN L. WHEELER 131 M St. NE, Rm. 5NW10P

Acting Associate General Counsel Washington, D.C. 20507

(202) 663-4870

JENNIFER S. GOLDSTEIN James.Tucker@EEOC.gov

Acting Assistant General Counsel

JAMES M. TUCKER

Attorney

APPELLEE’S RESPONSE TO APPELLANT’S BILL OF COSTS

Pursuant to this Court’s March 30, 2015, Order, Plaintiff-Appellee the U.S. Equal Employment Opportunity Commission (“Commission”) submits its response in opposition to the Bill of Costs filed by Defendant-Appellant Beverage Distributors Company, LLC (“BDC”). BDC’s Bill of Costs is excessive, requesting costs incurred for making more copies of its briefs and appendix than are required under this Court’s rules, an excessive per-page rate for some of its copying costs, and reimbursement in this Court for certain costs which, by operation of Federal Rule of Appellate Procedure 39(e), are not recoverable in this Court. For these reasons, the Commission respectfully requests that this Court decline to tax costs beyond $627.60, the amount BDC properly incurred in the reproduction of its briefs and appendix on appeal.

Federal Rule of Appellate Procedure 39(a) provides that if, as here, a court of appeals reverses the judgment of a district court, cost are taxed against the appellee. “As a general matter, the only recoverable costs are those incurred in copying documents that this court requires parties to file.” Clark v. Colo. Dep’t of Corr., 240 Fed. App’x 774, 776-77 (10th Cir. 2007) (citing Fed. R. App. P. 39(c); 10th Cir. R. 39.1).

However, Rule 39(e)—titled “Costs on Appeal Taxable in the District Court”—reserves taxation of certain appeal-related costs for the district court. Specifically, Rule 39(e) reserves for the district court the taxation of costs related to “the reporter’s transcript, if needed to determine the appeal” and “premiums paid for a supersedeas bond or other bond to preserve rights pending appeal.”

When parties seek taxation in the court of appeals of costs reserved in Rule 39(e) for taxation by the district court, this Court routinely rejects such requests and directs the party, consistent with Rule 39(e), to seek such costs in the district court. See, e.g., Pers. Dep’t, Inc. v. Prof’l Staff Leasing Corp., 297 Fed. App’x 773, 792 (10th Cir. 2008) (“To the extent reimbursement is sought by Plaintiff for costs taxable in the district court, such as filing fees, Plaintiff may file an appropriate motion in the district court.”) (citing Fed. R. App. P. 39(e)); Clark, 240 Fed. App’x at 777 (“To the extent that Mr. Clark seeks reimbursement for costs taxable in the district court, such as filing fees, see [Fed. R. App. P.] 39(e), the motion is denied without prejudice to refiling in the district court.”); GHK Exploration Co. v. Tenneco Oil Co., 857 F.2d 1388 (10th Cir. 1988) (“We thus grant Tenneco its costs on appeal and direct the district court to determine and tax GHK for the appropriate costs.”) (citing Fed. R. App. P. 39(e)).

In the instant matter, BDC has included in its Bill of Costs the costs it incurred for the reporter’s transcript and the supersedes bond the district court required it to post. See Defendant-Appellant’s Bill of Costs, at 2. BDC’s costs for acquiring the reporter’s transcript and supersedes bond are not costs it may seek in this Court, however, but instead per Rule 39(e) must be sought in the district court. Accordingly, BDC’s Bill of Costs must be reduced by $2,739.55 for its claimed reporter’s transcript costs and $1,654.00 for its claimed bond costs.[1]

As for BDC’s claimed costs related to its reproduction of its briefs and appendix on appeal, its request is excessive and lacking in supporting documentation. As stated previously, this Court recognizes that “[a]s a general matter, the only recoverable costs are those incurred in copying documents that this court requires parties to file.” Clark, 240 Fed. App’x at 776-77 (emphasis added) (citing Fed. R. App. P. 39(c); 10th Cir. R. 39.1). Accordingly, BDC is only entitled to recover costs incurred in producing the required number of hard copies of its briefs and appendix.

This Court’s local rules require that “[p]arties (or an amicus) must provide the court with 7 hard copies of all briefs filed,” and do not require any further production of hard copies of briefs, absent circumstances not present in the instant matter. 10th Cir. R. 31.5. In this appeal, BDC filed an opening brief containing 83 copied pages, including the front and back cover, and 3 tabbed pages. See Defendant-Appellant’s Opening Brief. Seven copies of that brief equals 581 copied pages and 21 tabbed pages.

BDC was also required, under the local rule in effect at the time it filed its appendix, to file two hard copies of that appendix with this Court and serve one copy on the Commission. See 10th Cir. R. 30.1(d) (2014) (“The appellant must file (with the clerk’s office) two separately bound hard copies of the appendix with the opening brief. One copy of the appendix must be served on every other party to the appeal.”). BDC’s three-volume appendix contains 1,043 copied pages, including covers, and 31 tabbed pages. See Defendant/Appellant’s Appendix. Three copies of the appendix equals 3,129 copied pages and 93 tabbed pages.

BDC’s reply brief contained 35 pages, including covers, and no tabs, and seven copies of that brief equals 245 copied pages. BDC’s supplemental brief on jurisdiction contained 11 pages, including covers, and no tabs, and seven copies of that brief equals 77 pages. In total, the number of copies BDC was required to file in this appeal amounts to 4,032 copied pages and 114 tabbed pages.

BDC has submitted documentation indicating that it was charged $.15 per page for copying, and $.25 per page for tabs, for both its opening brief and appendix. See Bill of Costs ex. 2. As the “[c]osts of making necessary copies of briefs, appendices, or other records are taxable at the actual cost, but no more than 20 cents per page,” 10th Cir. R. 39.1, BDC’s taxable costs for reproduction of its brief and appendix is $.15 per page for copying, and $.20 per page for tabs. Accordingly, BDC is only entitled to recover $604.80 for its copied pages (4,032 pages x $.15 per page) and $22.80 for its tabbed pages (114 pages x $.20 per page), for a total of $627.60 in taxable copying costs.

Conclusion

For the foregoing reasons, the Commission respectfully requests that this Court decline to tax costs beyond $627.60, the amount BDC properly incurred in the reproduction of its briefs and appendix on appeal.

Respectfully submitted,

P. DAVID LOPEZ

General Counsel

CAROLYN L. WHEELER

Acting Associate General Counsel

JENNIFER S. GOLDSTEIN

Acting Assistant General Counsel

s/ James M. Tucker

JAMES M. TUCKER

Attorney

EQUAL EMPLOYMENT

OPPORTUNITY COMMISSION

Office of General Counsel

131 M St. NE, Rm. 5NW10P

Washington, D.C. 20507

(202) 663-4870

James.Tucker@EEOC.gov

[1] BDC requests that this Court “direct[]”the district court to enter an order taxing the Commission with BDC’s costs for any costs taxable in the district court pursuant to Rule 39(e). Defendant-Appellant’s Bill of Costs, at 3. This Court should reject BDC’s request. Such an order would contravene Rule 39(e) and this Court’s established practice of referring such matters to the district court for consideration. See supra, at 2-3. In addition, “directing” the district court to enter an order taxing such costs to the Commission would be improper, as BDC has made no effort in its Bill of Costs or supporting motion to establish that it has satisfied the conditions precedent for the taxation of these costs. For example, BDC has not argued, let alone established, that production of the reporter’s transcript was, as required under Rule 39(e)(2), “needed to determine the appeal.” Nor has BDC established any “premiums paid” for its bond. See Fed. R. App. P. 39(e)(3).