When you lose an appeal in federal court, you usually have to pay the winner's costs. These costs usually include the out-of-pocket expenses for bringing the appeal, including photocopying and other necessary expenditures. This may not sound like much, but it can total more than $1,000. What if the losing plaintiff doesn't have the money?
The case is Moore v. County of Delaware, decided on November 2. In July, the Court of Appeals rejected Moore's due process claim arising from a warrantless police search of his house when his lover called authorities after entering the house without his permission and panicked when an unidentified caller rang the telephone. The police showed up and discovered drugs in the house, and then the government seized Moore's property, allegedly without due process. The Second Circuit held that defendants had qualified immunity from suit because the legal violation was not clearly established.
Pouring salt into the wound, the government then sought costs from Moore in the amount of $2,572.18. Moore objected because he is "nearly destitute." Although an award of costs is the rule, not the exception, the Court needs a good reason to waive them. The Court of Appeals (Cabranes, Hall and Stein, D.J.) does not set forth a bright-line rule that says nearly destitute losing parties do not have to pay costs. Instead, the Court says "denial of costs may be appropriate where a losing party can demonstrate misconduct by a prevailing party, the public importance of the case, the difficulty of the issues presented, or its own limited financial resources."
These factors weigh in Moore's favor. The case did involve governmental misconduct even though the government ultimately prevailed, in that the evidence seized from Moore's property was suppressed by a state court. Moore brought this case in good faith and, of course, he cannot afford the costs. Under the circumstances, he's off the hook for the $2,572.18.
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