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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA STATE OF SOUTH CAROLINA, Plaintiff, v. UNITED STATES OF AMERICA, and ERIC HIMPTON HOLDER, JR., in his official capacity as Attorney General of the United States, Defendants, JAMES DUBOSE, et al., Defendant-Intervenors. Civil Action No. 12-203 (BMK) (CKK) (JDB)

ORDER (January 4, 2013) South Carolina has filed a Bill of Costs seeking reimbursement for certain expenses it incurred in this case, in which South Carolina sought preclearance of its voter ID law, Act R54, under Section 5 of the Voting Rights Act. The Court denied preclearance for the 2012 elections, citing the short time left for implementation, but granted preclearance for all future elections based on South Carolinas interpretation of Act R54. The Court hence entered judgment in defendants favor for the 2012 elections and in South Carolinas favor for elections taking place in 2013 or subsequent years. Defendants and defendant-intervenors oppose South Carolinas Bill of Costs on several grounds. For the reasons explained below, the Court finds that South Carolina is entitled to costs, but that certain items must be excluded. Under Federal Rule of Civil Procedure 54, [u]nless a federal statute, these rules, or a court order provides otherwise, costsother than attorneys feesshould be allowed to the 1

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prevailing party. Fed. R. Civ. P. 54(d)(1). 1 South Carolina is the prevailing party. To be sure, South Carolina did not obtain everything it sought. But the prevailing party test does not demand complete success. The Supreme Court has held that plaintiffs may be considered prevailing parties for attorneys fees purposes if they succeed on any significant issue in litigation which achieves some of the benefit the parties sought in bringing suit. Hensley v. Eckerhart, 461 U.S. 424, 433 (1983) (internal quotation marks omitted). Although Hensley interpreted prevailing party in the context of attorneys fees under 42 U.S.C. 1988, rather than costs under Rule 54(d), the prevailing party analysis is generally the same for 1988 and Rule 54(d). See Tunison v. Contl Airlines Corp., 162 F.3d 1187, 1189 (D.C. Cir. 1998). And the D.C. Circuit has noted for Rule 54(d) itself that costs are allowed even where only nominal damages are granted after final judgment on the meritsin other words, where plaintiff obtained only some relief. See Friends for All Children, Inc. v. Lockheed Aircraft Corp., 725 F.2d 1392, 1399 (D.C. Cir. 1984). Here, South Carolina has undoubtedly achieved some of the benefit it sought: it obtained preclearance of Act R54 for elections in 2013 and subsequent years. Because South Carolina is the prevailing party, a strong presumption attaches that it is entitled to costs. See Baez v. Dept of Justice, 684 F.2d 999, 1004 (D.C. Cir. 1982) (en banc) (per curiam) (The presumption explicitly stated in Rule 54(d)that the prevailing party is normally entitled to costs in the district court as a matter of coursehas proven very powerful indeed.). This is not a case where the relief the prevailing party obtained is trivial, or where defendants filed successful counterclaims, nor are there other extraordinary circumstances that

Sovereign immunity is no bar as 28 U.S.C. 2412 allows costs to be awarded to a prevailing party against the United States. See 28 U.S.C. 2412(a)(1).

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rebut the presumption. South Carolina is accordingly entitled to costs from both defendants and defendant-intervenors. 2 Turning, then, to South Carolinas specific request, several reductions are appropriate. First, South Carolina requests costs for fees it incurred in obtaining transcripts of depositions, hearings, and trial. The costs that may be awarded to prevailing parties are set forth in 28 U.S.C. 1920. See Taniguchi v. Kan Pac. Saipan, Ltd., 132 S. Ct. 1997, 1999-2000 (2012). Under 1920, South Carolina is entitled to fees for transcripts necessarily obtained for use in the case. See 28 U.S.C 1920(2). The Court ordered that the parties briefing cite such transcripts, and they were hence necessarily obtained for use in the case. But the fees South Carolina seeks include charges for accelerated turnaround of the transcripts, charges to which defendants object. Transcripts are reimbursed at the court reporters standard rate as a matter of course. See Local Civil Rule 54.1(d)(6), (7). Reimbursement for a higher, expedited rate may, however, be justified where the special character of the litigation necessitates such services. See, e.g., Fogleman v. ARAMCO, 920 F.2d 278, 286 (5th Cir. 1991). Considering all the circumstances of this case, including any responsibility of South Carolina for delay, the Court finds that the same day, oneday, and two-day turnaround was not necessary to the litigation. Accordingly, the added charges for expedition shall be excluded. South Carolina is similarly entitled to fees incurred to transcribe the audio recordings of Act R54s legislative history, which South Carolina discovered late in the litigation. Arguing that no costs should be awarded for the transcription, defendants point to emails in which South

Defendant-intervenors argue that no award of costs should run against them because their participation should be encouraged and because they cannot afford to pay. But costs are routinely awarded against an unsuccessful litigant in civil rights litigation. Long v. Howard Univ., 561 F. Supp. 2d 85, 97 (D.D.C. 2008) (citing cases). Other provisions, for instance the allowance of fees and costs if defendant-intervenors win, achieve Congresss desired incentives. And defendant-intervenors have failed to establish an inability to pay costs given their hefty expenditures throughout the litigation.

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Carolinas counsel stated that the State would split the cost with defendant-intervenors. See Ex. A to United States Mem. in Oppn to South Carolinas Bill of Costs [Docket Entry 313-1] (Nov. 30, 2012). As South Carolina argues, however, these emails are best read as agreements dividing the out-of-pocket costs; they do not amount to a waiver of South Carolinas rights under Rule 54. Still, although the general cost of legislative history transcription is recoverable, insofar as any of the cost is attributable to South Carolinas late discovery of the recordings, that cost is noncompensable. South Carolina tacitly concedes this point, arguing that [t]here is no reason at all to believe that . . . the cost of transcription [would have been] any less, if the tapes had been discovered earlier. South Carolinas Reply in Supp. of its Bill of Costs [Docket Entry 315] at 15 n.8 (Dec. 14, 2012). Yet it is South Carolina that must show that the costs it seeks are compensable, i.e., that the delayed discovery did not increase the transcription fees. Insofar as the transcription charges were increased by expedition, that portion of the request shall be disallowed. Finally, the fees for electronic hyperlinking of exhibits are not compensable. True, the Court ordered the hyperlinking, and it was necessary to the litigation. But the Court can only award costs that are statutorily authorized. South Carolina cites two provisions of 1920 in support of its request, one that allows [f]ees and disbursements for printing, and another that allows the costs of making copies of any materials where the copies are necessarily obtained for use in the case. See 28 U.S.C. 1920(3), (4). Electronic hyperlinking, used for navigating the electronic versions of the briefs, falls outside the ordinary meaning of either printing or making copies. The Court hence cannot award costs for this expense. See Taniguchi, 132 S. Ct. at 2004, 2006 (interpreting 1920 categories to include only a terms ordinary meaning

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rather than all the definitions the word can encompass, and noting that doing so is in keeping with the narrow scope of taxable costs). To facilitate an accurate award of costs, South Carolina shall submit a revised Bill of Costs that omits these disallowed charges. The costs the State seeks will otherwise be awarded in full. Accordingly, it is hereby ORDERED that South Carolina shall submit a revised Bill of Costs by not later than January 11, 2013, that is consistent with this Order, including listing the charges for obtaining transcripts at standard rates, absent expedition; it is further ORDERED that South Carolina shall submit evidence of the impact or lack thereof of delayed discovery on the fees for transcribing the audio recordings of legislative proceedings (and shall exclude from the revised Bill of Costs any charges related to the delay); and it is further ORDERED that South Carolinas revised Bill of Costs shall exclude fees for electronic hyperlinking. SO ORDERED. /s/ BRETT M. KAVANAUGH UNITED STATES CIRCUIT JUDGE /s/ COLLEEN KOLLAR-KOTELLY UNITED STATES DISTRICT JUDGE /s/ JOHN D. BATES UNITED STATES DISTRICT JUDGE