§ 21.15 Recovering Appeal Costs

• Jurisdiction: Washington

§21.15 RECOVERING APPEAL COSTS

In judicial review of administrative action, applicable statutes often provide for recovery of some litigation costs by the prevailing party.

(1) Recovery of the cost to prepare the record

In some instances, the person seeking judicial review of administrative action is required to pay the agency its cost of preparing the record before the record is transmitted to the court. See §21.9. Typically, that cost is recoverable if the person prevails in its appeal.

(a) APA cases

In judicial review under the Administrative Procedure Act, Ch. 34.05 RCW, the costs of preparing and transmitting the agency's record to the superior court pursuant to RCW 34.05.566(3) are recoverable by a prevailing party. RCW 34.05.566(5)(b) (court may tax costs of "preparing transcripts and copies of the record" "[i]n accordance with any provision of law"); Portage Bay-Roanoke Park Cmty. Council v. Shorelines Hearings Bd.,92 Wn.2d 1, 9, 593 P.2d 151 (1979) (construing former APA as allowing prevailing party to recover the cost of the transcript of the proceeding under RCW 4.84.030, but refusing to tax such costs against the quasi-judicial agency); City of Lake Forest Park v. Shorelines Hearings Bd.,76 Wn.App. 212, 884 P.2d 614 (1994) (construing former APA as allowing prevailing state agency to recover costs for transcription of record) (citing RCW 4.84.030 and RAP 14.3). The court may also tax the cost against a party who unreasonably refuses to stipulate to shorten, summarize, or organize the record. RCW 34.05.566(5)(a). Friends of Columbia Gorge, Inc. v. Energy Facility Site Evaluation Council, 178 Wn.2d 320, 348, 310 P.3d 780 (2013) (court refused to tax any of the cost of preparation of the record based on a claim that the respondent unreasonably refused to stipulate to a shortened record, because it would have been difficult and time-consuming to arrive at a stipulated record, especially before the issues had been narrowed by any stipulation). Sometimes a more specific, non-APA statute may govern the question of which party initially or ultimately pays for the record. See, e.g., RCW 80.04.170 (permitting utilities and transportation commission to recover as part of statutory court costs its administrative hearing transcription costs); In re Elec. Light wave, Inc., 123 Wn.2d 530, 869 P.2d 1045 (1994). An agency having the express duty to transcribe testimony at its own expense may not have the right to recover that cost if it prevails on appeal, absent a statute authorizing such recovery. Pryse v. Yakima Sch. Dist. 7, 30 Wn.App. 16, 632 P.2d 60, review denied, 96 Wn.2d 1011 (1981). However, when the statute is silent as to who may recover costs, the courts have applied the general rule awarding costs to the prevailing party. Id. at 27 n.5 (citing Portage Bay,92 Wn.2d 1, and Bennett v. Board of Adjustment of Benton Cnty.,23 Wn.App. 698, 701, 597 P.2d 939 (1979). When the statute is silent as to who bears the initial cost or who may recover costs, the court may award costs to the prevailing party if RCW 4.84.030 applies. Portage Bay, 92 Wn.2d at 9. Cost recovery under Chapter 4.84 RCW is discussed in §21.15(2)(a). See also 14A Karl B. Tegland, Washington Practice: civil Procedure, Ch. 36, Costs (2d ed. 2009 & Supp. 2014-2015).

Cost recovery in the Court of Appeals and the Supreme Court is discussed in Chapter 17 of this deskbook. See also 3 Karl B. Tegland, Washington Practice: Rules Practice, Tit. 14, Costs: RAP 14.1-.6 (8th ed. 2014).

(b) LUPA cases

A petitioner who prevails on a land use petition under LUPA generally is entitled to recover all or part of the costs of preparing the record:

If the relief sought by the petitioner is granted in whole or in part the court shall equitably assess the cost of preparing the record among the parties. In assessing costs the court shall take into account the extent to which each party prevailed and the reasonableness of the parties' conduct in agreeing or not agreeing to shorten or summarize the record under subsection (2) of this section.

RCW 36.70C.110(4). See §21.15(2)(c). Recovery of the costs of producing the record does not bar recovery of additional costs under RCW 4.84.030 or .370. Brown v. City of Seattle, 117 Wn.App. 781, 795, 72 P.3d 764 (2003). The costs allowed to a prevailing party under Chapter 4.84 RCW are defined in RCW 4.84.010.

The cost allocation is reviewed by the appellate court under the abuse of discretion standard. However, for the allocation to be reviewable, the superior court needs to explain the basis for its equitable allocation of record preparation costs. Willapa Grays Harbor Oyster Growers Ass'n v. Moby Dick Corp., 115 Wn.App. 417, 434, 62 P.3d 912 (2003).

(c) Workers' compensation cases

The Board of Industrial Insurance Appeals bears the cost of reporting and transcribing board hearings. RCW 51.52.100.

(d) Implied consent appeals

Prevailing parties in an implied consent appeal can recover the expense of obtaining the record and preparing the transcript. RALJ 9.3(c). See §21.15(2)(e) for additional details.

(2) Recovery of attorney fees and other litigation expenses

The Equal Access to Justice Act, as well as several other statutes and rules, may provide for recovery of attorney fees and costs in judicial review of administrative action.

(a) Recovery in APA cases under the Equal Access to Justice Act

Under certain circumstances, a party that prevails against a state agency in a judicial review of an agency action may obtain attorney fees and litigation expenses under the Equal Access to Justice Act (EAJA), RCW 4.84.340-.360. The state EAJA was adopted in 1995. It is patterned after the federal act of the same name, codified at 5 U.S.C. §§504 and 554 and 28 U.S.C. §2412. Therefore, case law construing the federal statute may be cited as persuasive authority when the language of the state and federal statutes is similar. See, e.g., ZDI Gaming, Inc. v. State,151 Wn.App. 788, 813-15, 214 P.3d 938 (2009) (applying federal EAJA analysis to determine whether "special factors" justified awarding hourly fees in excess of statutory limit in state EAJA), aff'd on other grounds, 173 Wn.2d 608, 268 P.3d 929 (2012); Alpine Lakes Prot. Soc'y v. Dep't of Natural Res., 102 Wn.App. 1, 19, 979 P.2d 929 (1999) (adopting federal standard of review for state EAJA awards, but distinguishing federal EAJA in rejecting fees for administrative-level work).

Attorney fees and litigation expenses under the EAJA are available for each level of court review. See RCW 4.84.350; Costanich v. Dep't of Soc. & Health Servs.,164 Wn.2d 925, 929-34, 194 P.3d 988 (2008). Attorney fees are limited to $25,000 for each level of review. Costanich, 164 Wn.2d at 933. Agencies may not waive the statutory cap on attorney fees, and courts may award only those fees allowed by the EAJA. Id. at 934. The EAJA does not apply when another statute provides for the award of attorney fees against the agency. RCW 4.84.350(1); see, e.g., Samantha A. v. Dep't of Soc. & Health Servs., 171 Wn.2d 263, 256 P.3d 1138 (2011) (denying EAJA award when statute governing public assistance cases provided for attorney fees); Markam Grp., Inc., P.S. v. Dep't of Emp't Sec.,148 Wn.App. 555, 200 P.3d 748 (2009) (denying EAJA award when employment security statute provided attorney fees); see also Language Connection, LLC v. Dep't of Emp't Sec.,149 Wn.App. 575, 205 P.3d 924 (2009) (distinguishing Markam when employment security statute not applicable to particular facts).

EAJA attorney fees and cost awards are available only for "judicial review" of an "agency action." RCW 4.84.350(1). The EAJA applies only to judicial review under the APA. RCW 4.84.340(4); Cobra Roofing Servs., Inc. v. Dep't of Labor & Indus.,157 Wn.2d 90, 100-01, 135 P.3d 913 (2006). Attorney fees are not available for administrative proceedings. Cobra Roofing, 157 Wn.2d at 100-01. For purposes of the EAJA, "agency action" means agency action as defined in the APA. RCW 4.84.340(2). The APA does not apply to all agency actions or agencies, thus making the EAJA inapplicable to those excluded.

The definition of "action" under the APA excludes several categories of decision making including certain contracting, collective bargaining, and trademark decisions. RCW 34.05.010(3). Likewise, judicial review under the APA is not available in litigation when the sole claim is for money damages or compensation and the agency whose action is at issue does not have statutory authority to determine that claim, when de novo review or jury trial is expressly authorized by law, and in certain ancillary procedural matters. RCW 34.05.510; see also RCW 34.05.030 for other agencies and agency actions excluded from the APA. See §21.4(2), (3),

Recovery of fees and expenses is not available against all agencies. Under the EAJA, "agency" is defined as "any state board, commission, department, institution of higher education, or officer, authorized by law...