A memorandum of costs on appeal — called a bill of costs in federal practice — is the itemized, verified filing by which the party who won an appeal recovers specific out-of-pocket expenses from the losing side. In federal court, Federal Rule of Appellate Procedure 39 governs the process, splitting recoverable expenses between the court of appeals and the district court and setting a 14-day filing window at the appellate level.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs Miss the deadline or claim the wrong expenses, and you forfeit money you earned by prevailing.
Who Is Entitled to Costs
Before drafting anything, confirm the outcome actually entitles you to costs. FRAP 39(a) sets default allocations tied to how the appeal ended:
- If the appeal is dismissed, the party who filed the appeal pays.
- If the judgment is affirmed, the appellant pays costs to the party who won below.
- If the judgment is reversed, the appellee pays costs to the party who won the appeal.
- If the result is mixed — affirmed in part, reversed in part, modified, or vacated — each side bears its own costs.
These are defaults. The appellate court can override them and allocate costs differently.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs The mixed-result rule is where people stumble. Winning one issue and losing another does not entitle you to a cost award; the default is that nobody recovers unless the court says otherwise.
What You Can Recover
Appellate costs are narrow and statutory. You cannot pile in every dollar the appeal cost you. Federal law splits recoverable items into two tiers, and the tier determines which court the item is filed in.
Costs Taxed in the Court of Appeals
Three categories are taxed at the appellate level: the cost of producing necessary copies of briefs and appendices, the appellate docketing fee, and any filing fee paid directly to the court of appeals.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs Brief reproduction is usually the largest line item. Courts look at whether the number of copies was reasonable and whether the per-page rate matched prevailing commercial rates.
Costs Taxed in the District Court
A separate set goes back to the trial court: preparing and transmitting the record on appeal, the reporter’s transcript if it was needed, premiums on a supersedeas bond or other security posted during the appeal, and the fee for filing the notice of appeal.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs Transcript charges can run into the thousands on a long trial, making them the biggest recoverable number in many appeals.
The broader federal costs statute, 28 U.S.C. § 1920, also permits recovery for clerk and marshal fees, witness fees, and copies necessarily obtained for use in the case.2GovInfo. 28 USC 1920 – Taxation of Costs
What You Cannot Recover
The list of non-recoverable expenses is longer than the recoverable one, and this is where most disputes start. Attorney fees are the headline exclusion. They are not “costs” under FRAP 39 and require a separate motion grounded in a fee-shifting statute or a contractual provision.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs Dropping attorney fees into a bill of costs is a common mistake and an easy target for objection.
Courts also routinely reject electronic legal research charges (Westlaw, Lexis), postage and courier fees, travel, paralegal time, and long-distance phone calls. The governing principle is simple: only expenses specifically authorized by the applicable rule or statute qualify. If you cannot point to the rule authorizing the item, leave it off.
Where and When to File
Federal appellate costs often require filings in two different courts. Appellate-level costs — brief production, docketing fee, and any appellate filing fee — go to the circuit clerk. District-court-level costs — record preparation, transcripts, bond premiums, and the notice of appeal filing fee — go to the trial court where the case started.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs
The appellate deadline is tight. The itemized, verified bill of costs must be filed with the circuit clerk and served on the opposing party within 14 days after entry of the appellate judgment.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs Miss that window and those costs are waived. FRAP does not set a separate deadline for the district court filing, so the district’s local rules govern that timeline. Check them the moment the opinion issues.
State courts follow their own rules, and the trigger is often different. Some states run the clock from issuance of the remittitur — the formal document returning jurisdiction to the trial court — rather than the date of the appellate opinion. The gap between opinion and remittitur can be weeks or months, so confirm which event starts your clock.
Preparing the Bill of Costs
Federal courts provide form AO 133 for district court costs, available on the court’s website. The form asks for the case name and number, the party claiming costs, and a line-by-line itemization with amounts. Gather receipts, invoices, and financial records for every item before you start. A bill without supporting documentation invites objection.
The form includes a verification signed under penalty of perjury: each cost is correct, was necessarily incurred, and any services charged for were actually performed.3United States Courts. AO 133 Bill of Costs This is a legal attestation. Inflating costs or claiming items that were not necessary exposes you to sanctions. The verification requirement is also codified in 28 U.S.C. § 1924, which requires an affidavit confirming each item before the bill can be taxed.
Serve a copy on every other party and file proof of service with the bill. Electronic filing usually generates proof automatically; mail or personal service also work, depending on the court’s rules.
Objecting to the Other Side’s Costs
If you are on the receiving end, you can challenge any expense you believe is improper. In federal appellate practice, objections to appellate-level costs must be filed within 14 days after the bill of costs is served.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs For district court costs, consult the local rules. In many state courts the equivalent is a motion to tax or strike costs.
Legitimate grounds for objecting include:
- The expense is not authorized by FRAP 39 or 28 U.S.C. § 1920 (attorney fees being the classic example).
- The category is recoverable but the amount claimed is unreasonable, such as a per-page copy rate well above market.
- The expense was incurred in the case but was not necessary for the appeal, such as transcript pages from hearings unrelated to the appellate issues.
- The claiming party failed to document the amount.
Identify each specific cost you are challenging and explain why. Blanket objections that call “all costs” unreasonable without addressing line items rarely succeed. The clerk or judge then allows, reduces, or strikes each challenged item.
After the Bill Is Taxed
Once the circuit clerk processes appellate-level costs, the clerk prepares a certified statement for inclusion in the mandate — the official order sent from the appellate court to the trial court. If the mandate issues before costs are finalized, the district clerk adds the cost statement to the mandate once it is ready.1Legal Information Institute. Federal Rules of Appellate Procedure Rule 39 – Costs The award becomes part of the enforceable judgment. For costs taxed in the district court, the clerk allows the bill (subject to objections) and it is included in the judgment or decree.2GovInfo. 28 USC 1920 – Taxation of Costs
A federal cost award that becomes part of a money judgment accrues post-judgment interest under 28 U.S.C. § 1961, at a rate tied to the weekly average one-year constant maturity Treasury yield for the week before the judgment date.4Office of the Law Revision Counsel. 28 USC 1961 – Interest Interest is calculated daily and compounded annually. The current rate is published by the U.S. Courts.5United States Courts. 28 USC 1961 Post Judgment Interest Rates
If the losing party does not pay, the award is enforceable like any other money judgment. In federal court, that typically means a writ of execution under Federal Rule of Civil Procedure 69; state courts offer their own collection tools, including writs, bank levies, and wage garnishment. Appellate cost awards are usually modest next to the underlying judgment, and most losing parties pay voluntarily, but the enforcement machinery is there if they don’t.