Dillard v. Yeldell

• Decision Date: 17 March 1975
• Docket Number: No. 8846.,8846.
• Citation: 334 A.2d 578
• Parties: Bernadette DILLARD and Agnes B. Palmer, Petitioners, v. Joseph P. YELDELL et al., Respondents.
• Court: D.C. Court of Appeals

Page 578

334 A.2d 578

Bernadette DILLARD and Agnes B. Palmer, Petitioners, v. Joseph P. YELDELL et al., Respondents.

No. 8846.

District of Columbia Court of Appeals.

March 17, 1975.

Edward E. Schwab and Margaret Stone, Washington, D. C., for petitioners.

C. Francis Murphy, Corp. Counsel, Louis P. Robbins, Principal Asst. Corp. Counsel, Richard W. Barton and E. Calvin Golumbic, Asst. Corp. Counsels, Washington, D. C., for respondents.

Before KELLY, GALLAGHER and NEBEKER, Associate Judges, in chambers.

NEBEKER, Associate Judge:

This motion presents the question whether a $25 filing fee can be assessed against officers of the District of Columbia Department of Human Resources (DHR) in their official capacity. A petition for a writ in the nature of mandamus to compel required agency action was dismissed as moot because the officers tardily performed the actions requested after the petition was filed. Costs are awarded to petitioners.

Petitioners are claimants before DHR. Each petitioner was granted a favorable decision under the procedures set out by the District of Columbia City Council in Order of the Commissioner No. 68-641, September 27, 1968, governing final hearings requested by public assistance applicants and recipients. On August 6, 1974, petitioner Dillard was granted one month's retroactive payment under the Aid to Families with Dependent Children program. On June 10, 1974, petitioner Palmer was granted a full year's retroactive payment in the amount of $2,400. Neither petitioner received payment although Order of the Commissioner No. 68-641, § 11 (c), requires any final decision arising out of these hearings to be "put in effect immediately unless otherwise specifically indicated in the action."

The petition for a writ of mandamus was filed September 23, 1974, and at that time petitioner Dillard had been waiting over one month and petitioner Palmer over three months for implementation of the decision. These delays are especially inappropriate in light of the purpose of the welfare legislation and regulations involved. The programs DHR administers are primarily designed to give relief to persons in need by providing some immediate purchasing power to them. The regulations recognize that, especially in cases such as these where an applicant is wrongfully denied aid, as soon as the error is discovered the aid must be made available immediately. The effectiveness of the programs depends upon the conscientious adherence to these regulations, and the availability of a writ in the nature of mandamus to compel a public officer to follow regulations governing the administrative agency has been recognized.¹

The day after the petition was filed, payment was mailed to petitioner Dillard. On October 2, 1974, steps were taken to assure payment to petitioner Palmer by October 16, 1974. Therefore, on October 11, 1974, petitioners filed a suggestion of mootness because the action required had been taken. Petitioners requested that they be awarded costs in the amount of $25 to cover the filing fee for the petition in this court.

The jurisdiction of this court in the present case is based on D.C.Code 1973, §§ 1-1510 and 11-722, which sections give this court the power to review the orders and decisions of administrative agencies such as the Department of Human Resources. Specifically, D.C.Code 1973, § 1-1510(2), provides that this court can "compel agency action unlawfully withheld or unreasonably delayed". In addition, under the All Writs statute, 28 U.S.C. § 1651 (1966), this court can issue all writs "necessary or appropriate" in aid of its jurisdiction. Thus there is ample statutory authority conferring on this court responsibility to ensure compliance under this program. There is, however, no explicit statutory authority or direction for the award of costs in such a proceeding.

At common law no costs were allowed to the successful litigant in a mandamus proceeding, and it has been held that the award of costs in such a proceeding is purely statutory.² Some state jurisdictions have refused to award any costs in a mandamus proceeding without specific statutory authorization.³ Other jurisdictions have relied on a general statute which awarded costs to the "prevailing party"⁴ or assessed costs against the "failing party",⁵ and some courts have cited no authority at all for awarding costs to successful litigants in mandamus proceedings.⁶

There is no general statute authorizing the award of costs in this court, rather the matter of costs is governed by D.C.App.R. 39. Neither this rule nor D. C.App.R. 21 on mandamus specifically provides for costs in mandamus proceedings. Both these rules are derived from the corresponding Federal Rules of Appellate Procedure, but the federal rules also are devoid of specific directions as to the allocation of costs in mandamus proceedings. The Notes of the Advisory Committee for Fed.R.App.P. 39 refer to 28 U.S.C. § 1920 (1966) as the statutory authorization for assessing costs. This provision states in pertinent part:

A judge or clerk of any court of the United States may tax as costs the following:

(1) Fees of the clerk and marshal;

* * * * * *

A bill of costs shall be filed in the case and, upon allowance, included in the judgment or decree.

While this court is not a "court of the

United States" as defined in 28 U.S.C. § 451 (1968), it would seem that our authority for permitting costs to be included in the judgment or decree of this court stems from § 1920 as necessarily incorporated in D.C.Code 1973, § 11-743. By that latter provision, a part of the District of Columbia Court Reorganization Act of 1970, 84 Stat. 475, the Congress prescribed that the business of this court shall be conducted according to the Federal Rules of Appellate Procedure. The court may adopt or prescribe modifications of those rules, but it has not done so respecting Rule 39. Accordingly, we read D.C.Code 1973, § 11-743 and 28 U.S.C. § 1920 together as providing authority for allowing costs. See also District of Columbia v. D. E. P., D.C. App., 311 A.2d 831 (1973); Wright v. Mathias, D.C.Mun.App., 128 A.2d 658 (1957); Simcic v. United States, D.C.Mun.App., 86 A.2d 98, aff'd, 91 U.S.App.D.C. 102, 198 F.2d 951 (1952).

Having reached this general conclusion as to cost authority, we are left with the question whether it applies to extraordinary proceedings. Both our Rule 39 and Federal Rule of Appellate Procedure 39 speak of awarding costs on appeal.

The "federal courts" have not always relied on explicit statutory authority for assessing costs. Early cases⁷ cited "section 983 of the Revised Statutes" as authority for awarding costs to the "prevailing party", but at least one court,⁸ while recognizing this practice as "the general rule", expressed doubt as to whether any act of Congress, including section 983, specifically so provided. This same court explained:

The fragmentary character of the provisions of the acts of Congress upon this subject is due to the fact that they were framed in recognition of an almost universal usage in courts of justice of allowing costs to the prevailing party, rather than to any supposed necessity for affirmative legislation. [Western Coal & Mining Co. v. Petty, 132 F. 603, 604 (8th Cir. 1904).]

The Supreme Court in In re Peterson, 253 U.S. 300, 40 S.Ct. 543, 64 L.Ed. 919 (1920), stated at 316, 40 S.Ct. at 548:

The allowance of costs in the federal courts rests, not upon express statutory enactment by Congress, but upon usage long continued and confirmed by implication from provisions in many statutes. . . .

This jurisdiction has also recognized that "[t]he assessment of costs is, in part, a matter governed by statute; in part, by usage." Adlung v. Gotthardt, 103 U.S. App.D.C. 195, 196, 257 F.2d 199, 200 (1958).

Looking to the early cases for the established "usage", we find:

In the case of Kendall v. United States, 37 U.S. 524, 12 Pet. 524, 9 L.Ed. 1181, which is the leading case establishing the right of a citizen to the use of the writ of mandamus to compel a public officer to perform a duty merely ministerial, the realtor recovered his costs. . . . [United States v. Schurz, 102 U.S. 407, 408, 26 L.Ed. 219 (1881).]

The facts of the present case are somewhat analogous to In re Haight & Freese Co., 164 F. 688 (1st Cir. 1908), in which a petition for a writ of mandamus to compel a judge to grant an appeal was dismissed after the court had issued a show cause order against the judge because, after the filing of the petition, the judge had granted the appeal. In discussing the award of costs under these circumstances, the court said:

There is, however, no statute nor any rule of the Supreme Court which, by its terms, gives costs to a prevailing party on a mere order to show cause issued on a petition for a writ of mandamus, or on any other petition. Therefore the question of costs on such a petition is governed by the same principles which apply to bills in equity, and to various applications laying the foundation of formal proceedings. [Id. at 689-90.]

Accordingly, we hold that this court has authority to award costs in this mandamus proceeding.

We now turn to the question of whether under the facts of this case an award of costs is warranted. Mandamus is a legal remedy whose grant or denial is largely controlled by equitable principles,⁹ and it therefore is appropriate to use equitable principles in awarding costs in such a proceeding. The facts of the present case are unique, but other courts faced with similar situations have held that when the party against whom a writ of mandamus is sought performs the requested action, thereby making the controversy moot, the petitioner can recover costs.¹⁰ Applying equitable principles to the facts of this case, we hold that petitioners should be awarded costs in the amount of $25 to cover the filing fee for the petition. There may be circumstances under which no costs would be recoverable, but the length of...