In Canter v.  AT&T Umbrella Benefit Plan, No. 21-1514 (7th Cir. May 11, 2022), the Seventh Circuit holds in an issue of first impression in the circuit that a prevailing defendant may not tax pro hac vice admission fees for out-of-state lawyers as a “cost” under Fed. R. Civ. P. 54(d) and 28 U.S.C. § 1920.

Section 1920 decribes six categories of taxable costs that can be recovered by a prevailing party in a federal civil action, independent of any other fee- or cost-shifting statutes.

(1) Fees of the clerk and marshal;

(2) Fees for printed or electronically recorded transcripts necessarily obtained for use in the case;

(3) Fees and disbursements for printing and witnesses;

(4) Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case;

(5) Docket fees under section 1923 of this title;

(6) Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services under under section 1828 of this title.”

In this ERISA case where the defendant plan prevailed, the district court taxed plaintiff (among other costs) $181 in pro hac vice fees paid by defense counsel from outside the jurisdiction to appear in the federal district court.

The Seventh Circuit reverses. Rule 54(d) says that “costs” generally “should be awarded to the prevailing party in a civil action, and section 1920 provides a list of what costs are taxable pursuant to that rule.” Citing Taniguchi v. Kan Pacific Saipan, Ltd., 566 U.S. 560 (2012), the panel holds that the ennumerated categories must be “narrowly construed.”

“‘Fees of the clerk’ recalls 28 U.S.C. § 1914, which permits the collection of filing fees and ‘such additional fees only as are prescribed by the Judicial Conference of the United States.’
The Judicial Conference’s fee schedule refers only to a $188 fee for ‘original admission of attorneys to practice.’ 28 U.S.C. § 1914, District Court Miscellaneous Fee Schedule #10. And
‘[o]riginal admission’ is quite different from the short-term character of pro hac vice status. We therefore now hold that pro hac vice fees are not taxable ‘costs,’ and reverse the district
court’s decision to award the $181 to the defendants.”