Baez v. U.S. Dept. of Justice

• Decision Date: 30 July 1982
• Citation: 221 U.S.App.D.C. 477,684 F.2d 999
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 999

684 F.2d 999

221 U.S.App.D.C. 477, 8 Media L. Rep. 2185

Joan BAEZ, Appellant, v. UNITED STATES DEPARTMENT OF JUSTICE, et al., Appellees.

No. 79-1881.

United States Court of Appeals District of Columbia Circuit.

Argued En Banc 11 Dec. 1981.

Decided 30 July 1982.

On Award of Costs.

Martin S. Echter, Washington, D. C., with whom Ira M. Lowe, Washington, D. C., was on the brief, for appellant.

Douglas N. Letter, Atty., Dept. of Justice, Washington, D. C., with whom Thomas S. Martin, Acting Asst. Atty. Gen., Charles F. C. Ruff, U. S. Atty. at the time the brief was filed, and Leonard Schaitman, Atty., Dept. of Justice, Washington, D. C., were on the brief, for appellees. Freddi Lipstein, Atty., Dept. of Justice, Washington, D. C., also entered an appearance for appellees.

John H. Harwood, II, and Arthur B. Spitzer, Washington, D. C., were on the brief for amicus curiae American Civil Liberties Union Fund of the Nat. Capital Area.

Before ROBINSON, Chief Judge, and WRIGHT, TAMM, MacKINNON, ROBB, WILKEY, WALD, MIKVA, EDWARDS and GINSBURG, Circuit Judges.

Opinion PER CURIAM.

Dissenting opinion filed by Circuit Judge TAMM, in which Circuit Judge J. SKELLY WRIGHT joins.

Dissenting opinion filed by Circuit Judge HARRY T. EDWARDS.

PER CURIAM:

The issue before us is whether the Government, the prevailing party on an appeal from a FOIA action in district court, should be denied an award of $365.00, its costs on appeal. Because this case offers no circumstance and appellant has made no argument to overcome the general presumption under Rule 39 of the Federal Rules of Appellate Procedure favoring cost recovery by the prevailing party on appeal, the Government is entitled to the costs it seeks.

I. Facts

On 27 April 1976 appellant Baez made a Freedom of Information Act request to the Federal Bureau of Investigation, seeking "(a)ll information or other references or materials, in whatever form or manner, referring to or directly or indirectly concerning Joan C. Baez whether filed under her name or obtainable by searching through other files or materials." ¹ The FBI acknowledged receipt of appellant's request and advised her that it would be processed in its proper order among the many FOIA requests that had been received. When no further reply was received by 18 October 1976, appellant filed suit in the United States District Court for the District of Columbia to compel disclosure of the records. On 18 February 1977 the District Court granted the Government's motion to stay the proceedings while the FBI finished processing appellant's request.

By letter dated 21 March 1977 the FBI released to appellant 365 pages of material located in its main file, but withheld other documents pursuant to Exemptions 1, 3, 7(C), 7(D), and 7(E) of FOIA. As a result of appellant's administrative appeal, the Bureau released 145 additional pages; it continued to claim valid exemptions for the remaining documents, however.

In April 1978 the FBI notified appellant that it had completed an additional search for references to her appearing in the "see reference files." ² It thereafter released an additional 1,075 pages of material, once again withholding portions thereof pursuant to Exemptions 1, 7(C), 7(D), and 7(E) of FOIA. ³

On 7 November 1978, after exhausting her administrative appeals, appellant moved for summary judgment and partial in camera review of the documents withheld. The Government filed a cross motion for summary judgment with supporting affidavits on 1 December 1978. On 21 June 1979 the Government filed additional affidavits with the district court, one of which indicated that the FBI had reexamined all withheld documents under the new classification criteria established by Executive Order No. 12,065. ⁴ The examining agent averred that the documents that the FBI had withheld still merited classification under the new standards.

At a 25 June 1979 hearing on the respective motions, the district court ruled that Exemptions 1, 3, 7(C), and 7(D) were properly taken. Appellant appealed the district court's judgment to this court, alleging error with respect to the rulings on Exemptions 1, 7(C), and 7(D). This court found no error in the trial court's rulings and on 25 August 1980 affirmed the district court's decision "in all respects." ⁵

Following Baez's unsuccessful appeal, the Justice Department filed a bill of costs in the amount of $365.00, the cost of printing 50 copies of its brief on appeal. The Government relied on Rule 39 of the Federal Rules of Appellate Procedure, which provides that "costs shall be taxed against the appellant, when a judgment of the district court is affirmed."

Appellant gave no indication that she was unable to pay the costs sought, nor did she allege any misconduct or wrongdoing on the part of the Government. She opposed a costs award on two grounds: First, appellant argued that the spirit of the 1974 amendment to FOIA, providing attorneys' fees and costs to substantially prevailing FOIA plaintiffs, ⁶ worked to deny costs to the Government in all FOIA cases, except where the suit against it is found to be "frivolous and brought for harassment purposes." ⁷ Second, appellant argued that the amount of costs billed by the Government was excessive, inasmuch as it represented costs for 50 copies of its brief, and this court requires only that 15 copies of a brief be filed on appeal.

On 7 May 1981 a panel of this court issued a majority opinion (from which Judge Wilkey dissented) denying the Government's request for costs on the grounds that the appellant's appeal was not frivolous, unreasonable or without foundation. It thus ordered that each party should bear its own costs. ⁸ This order was followed, on 21 May 1981, by the Government's "petition for rehearing with suggestion for rehearing en banc." The same panel majority of this court, "(a)fter careful consideration of the Government's Petition, grant(ed) the request for rehearing, and vacate(d) the opinion issued by the majority on May 7th, 1981." The majority of the panel adhered to the result it had earlier reached, but stated simply that "consistent with our authority under Rule 39(a), we hereby deny the Government's request for costs in this case. Each side shall bear its own costs." Judge Wilkey again dissented. ⁹

On 18 August 1981 this court ordered that the costs issue be reheard en banc and vacated all prior orders and opinions regarding costs. Both sides submitted briefs on the issue of costs and oral argument was heard on 11 December 1981.

II. Discussion

A. The Presumption Favoring Cost Awards to Prevailing Parties

While there is a dearth of case law dealing specifically with cost awards under Rule 39 of the Federal Rules of Appellate Procedure, this is not so of the issue of cost recovery in general. As early as 1487 English law had codified the common law practice "that if a judgment be affirmed on writ of error, the writ be discontinued, or if the party suing it be nonsuited then the defendant in error was to have his costs." ¹⁰ In actions at law prevailing parties were entitled to costs as of right; ¹¹ in actions at equity the Chancellor exercised discretion when deciding whether to allow costs to the victors. ¹² American courts adopted English practice by the early part of the nineteenth century, typically giving total reimbursement, including attorneys' fees, to the prevailing litigant. ¹³

Over time, the American rule regarding attorneys' fees began to deviate from the rule governing taxation of costs. ¹⁴ However, although judges came to hold "that attorney's fees are not ordinarily recoverable (by the victor) in the absence of a statute or enforceable contract providing therefor," ¹⁵ the courts of this country continued to recognize a strong presumption favoring cost awards to prevailing litigants. ¹⁶ Two factors called for a legal distinction between the presumptions regarding awards of costs and attorneys' fees: (1) the sharp disparity between the dollar amounts of the two awards, ¹⁷ and (2) "the time, expense and difficulties of proof inherent in litigating the question of what constitutes reasonable attorney's fees." ¹⁸ Unlike attorneys' fees, whose magnitude and unpredictability have discouraged parties with otherwise meritorious claims from litigation, ¹⁹ the small and predictable costs of court fees, printing costs, and court reporters' fees have customarily been viewed as necessary and reasonable incidents of litigation, properly reimbursable to the victors. ²⁰

While both attorneys' fee awards ²¹ and taxation of costs ²² have eventually come to be governed by statute in America, both types of statute embody the notions that assessment of attorneys' fees against the losers may be a form of penalty, while taxation of costs merely represents the fair price of unsuccessful litigation. ²³

When law and equity merged in 1937 the Federal Rules of Civil Procedure adopted both equity's discretionary standard for awarding costs ²⁴ and the common law presumption favoring the award of litigation costs to the prevailing party. Thus Federal Rule of Civil Procedure 54(d) provides,

Except when express provision therefor is made either in a statute of the United States or in these rules, costs shall be allowed as of course to the prevailing party unless the court otherwise directs.... ²⁵

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 course-has proven very powerful indeed. In Delta Air Lines, Inc. v. August ²⁶ the Supreme Court stated clearly that prevailing parties "presumptively will obtain costs under Rule 54(d)," and that "(b)ecause costs are usually assessed against the losing party, liability for costs is a normal incident of defeat." ²⁷ Every circuit court that has considered the question (ten out of twelve) has not only recognized the presumption, but has held that a court may neither deny nor reduce a prevailing...