DRONEY, Circuit Judge:
Plaintiff-Relator ("Plaintiff") Associates Against Outlier Fraud appeals the award of costs against it in a False Claims Act ("FCA") case, arguing that the district court improperly ordered it to pay defendants the costs of deposition transcripts under Federal Rule of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920. Plaintiff asserts that it should have been shielded from this award by 31 U.S.C. § 3730(d)(4), which restricts the award of "expenses" to prevailing defendants in FCA cases to cases found to be "clearly frivolous," because "costs" and "expenses" are one and the same under the FCA, 28 U.S.C. § 1920, and the Federal Rules of Civil Procedure.
We
Plaintiff Associates Against Outlier Fraud brought a qui tam action under the False Claims Act, 31 U.S.C. § 3729 et seq.,
Huron and Empire subsequently petitioned the district court for costs. On September 10, 2014, the Clerk of Court for the district court awarded Empire $5,839.80 in costs and on September 12, 2014, the Clerk of Court awarded Huron $7,886.95 in costs. Most of those costs were for deposition transcripts used in resolving the motions for summary judgment.
Plaintiff appealed the award of costs to the district court. In that appeal, Plaintiff argued that the award of costs for deposition transcripts was precluded by 31 U.S.C. § 3730(d)(4), which requires that a court, before awarding "reasonable attorneys' fees and expenses" to defendants for cases brought under the FCA, find that the lawsuit was "clearly frivolous, clearly vexatious, or brought primarily for purposes of harassment." It was uncontested both in the district court and in this appeal that this standard was not met.
The district court rejected this argument, concluding that "expenses" and "costs" have distinct meanings under the Federal Rules of Civil Procedure and the FCA, and affirmed the award of costs.
A district court reviews the clerk's award of costs by exercising its own discretion to "decide the cost question [it]self." Whitfield v. Scully, 241 F.3d 264, 269 (2d Cir.2001) (alteration in original) (quoting Farmer v. Arabian Am. Oil Co., 379 U.S. 227, 233, 85 S.Ct. 411, 13 L.Ed.2d 248 (1964)). This Court then reviews a district court's order awarding costs for abuse of discretion. Id. (citing ARP Films, Inc. v. Marvel Entm't Grp., Inc., 952 F.2d 643, 651 (2d Cir.1991)). A legal determination as to "[w]hether the district
The award of costs that the district court approved was based on Federal Rule of Civil Procedure 54(d)(1), which provides for the award of the following to prevailing parties:
Fed. R. Civ. P. 54(d)(1). The next subsection of the rule sets forth the procedure for requesting attorney's fees and nontaxable expenses:
Fed. R. Civ. P. 54(d)(2)(A). 28 U.S.C. § 1920 sets out what an award of "costs" may consist of
The FCA, in its fee-shifting provision, provides:
31 U.S.C. § 3730(d)(4). Plaintiff argues that "expenses" (as referred to in § 3730(d)(4)) include the "costs" referred to in Fed. R. Civ. P. 54(d)(1), and thus may not be imposed on it as Plaintiff's claim was not frivolous.
We disagree. As the district court explained in its decision below, the distinction between "costs" and "expenses" is well established in the Federal Rules of Civil Procedure. "Taxable costs are limited to relatively minor, incidental expenses," while "nontaxable expenses [are those] borne by litigants for attorneys, experts, consultants, and investigators." Taniguchi v. Kan Pac. Saipan, Ltd., ___ U.S. ___, 132 S.Ct. 1997, 2006, 182 L.Ed.2d 903 (2012); see also id. ("Although `costs' has an everyday meaning synonymous with `expenses,' the concept of taxable costs under Rule 54(d) is more limited and represents those expenses, including, for example, court fees, that a court will assess against a litigant." (quoting 10 C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 2666 at 202-03 (3d ed. 1998))); 10 J.W. Moore et al., Moore's Federal Practice § 54.103[1] (3d ed. 2015) ("`Costs' Is Term of Art Not Synonymous With Expenses.... As employed
This distinction between costs and expenses is no less clear in the FCA. For example, 31 U.S.C. § 3730(g) of the FCA incorporates 28 U.S.C. § 2412(d), which distinguishes between "fees and other expenses" and those "costs" enumerated in 28 U.S.C. § 1920.
As another example, a neighboring subsection of the FCA distinguishes among "expenses, [attorneys'] fees, and costs" as individual terms in the context of a successful False Claims Act qui tam action. 31 U.S.C. § 3730(d)(2). Appellant, by arguing that Congress used the terms interchangeably, in effect asks this Court to read the terms inconsistently across the FCA. To the contrary, "we must attempt to give effect to the plain meaning of each word in the statute." United States v. Pacheco, 225 F.3d 148, 156 (2d Cir.2000); see King v. Burwell, ___ U.S. ___, 135 S.Ct. 2480, 2498, 192 L.Ed.2d 483 (2015) (noting "the elementary principle that requires an interpreter `to give effect, if possible, to every clause and word of a statute'" (quoting Montclair v. Ramsdell, 107 U.S. 147, 152, 2 S.Ct. 391, 27 L.Ed. 431 (1883))).
Therefore, 31 U.S.C. § 3730(d)(4) does not affect the award of costs under Rule 54(d)(1) to prevailing parties.
In so ruling, we join a number of other circuit courts that have reached the same conclusion. See United States ex rel. Ritchie v. Lockheed Martin Corp., 558 F.3d 1161, 1172 (10th Cir.2009) ("Section 3730(d)(4) does not govern the recovery of costs by a prevailing defendant...."); United States ex rel. Costner v. United States, 317 F.3d 889, 891 (8th Cir.2003) ("[Section] 3730(d)(4) is not an express provision regarding costs and thus does not displace the district court's authority to award costs under Rule 54."); United States ex rel. Lindenthal v. Gen. Dynamics Corp., 61 F.3d 1402, 1414 (9th Cir.1995) (same).
Plaintiff additionally cites decisions which at times refer to "costs" and "expenses" interchangeably in different contexts, as well as statutory references — also in other contexts — that fail to distinguish the terms. However, those inapposite references do not override the clear language of the statutes and rules here.
As "costs" and "expenses" have distinct meanings under Federal Rule of Civil Procedure 54(d), 28 U.S.C. § 1920, and the FCA, 31 U.S.C. § 3730(d)(4) does not preclude the award of the costs for deposition transcripts.
In an argument only raised on appeal, Plaintiff alternatively asserts that 28 U.S.C § 1920 does not properly include the cost of deposition transcripts, so an award under Rule 54(d)(1) was improper. See Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437, 441-42, 107 S.Ct. 2494, 96 L.Ed.2d 385 (1987) ("[28 U.S.C.] § 1920 defines the term `costs' as used in Rule 54(d). Section 1920 enumerates expenses that a federal court may tax as a cost under the discretionary authority found in Rule 54(d)."). As Plaintiff did not make this argument below, it is forfeited. See Greene v. United States, 13 F.3d 577, 586 (2d Cir.1994) ("[I]t is a well-established general rule that an appellate court will not consider an issue raised for the first time on appeal."). However, even if appropriately presented, it would have no merit. This Court has stated clearly that "[t]he courts of appeals have consistently interpreted [§ 1920] to permit the taxation
For the foregoing reasons, we