Mellon v. Heiner, 6980

• Decision Date: 10 April 1939
• Docket Number: No. 6980,6979.,6980
• Citation: 30 F. Supp. 948
• Parties: MELLON v. HEINER, Former Collector of Internal Revenue. MELLON et al. v. SAME.
• Court: U.S. District Court — Western District of Pennsylvania

30 F. Supp. 948

MELLON v. HEINER, Former Collector of Internal Revenue.

MELLON et al. v. SAME.

Nos. 6980, 6979.

District Court, W. D. Pennsylvania.

April 10, 1939.

Reed, Smith, Shaw & McClay, William A. Seifert, William Wallace Booth, and Seward H. French, Jr., all of Pittsburgh, Pa., for plaintiffs.

Chas. F. Uhl, U. S. Atty., and Orris Bennett, Sp. Asst. to U. S. Atty., both of Pittsburgh, Pa., and George H. Zeutzius, Sp. Asst. to Atty. Gen., for defendant.

GIBSON, District Judge.

Plaintiffs in above cases, by their attorneys, filed exceptions to the memorandum of costs and disbursements filed by the Special Assistant to the United States Attorney. The costs in question sought to be taxed were incurred in connection with appeals from decisions of this court to the Circuit Court of Appeals and from that court to the United States Supreme Court.

The decision of this court was in favor of plaintiffs. This decision was affirmed in the Circuit Court of Appeals, 3 Cir., 89 F.2d 141, but was reversed in the Supreme Court. 304 U.S. 271, 58 S.Ct. 926, 82 L.Ed. 1337.

In taxing the costs the Clerk of this court sustained the exceptions of plaintiffs to the taxation claimed by the Special Assistant to the United States Attorney, and disallowed the item of $3,507.08 for printing the consolidated record on appeal. Pursuant to Rule 54 of the Rules of Civil Procedure, 28 U.S.C.A. following section 723c, the United States Attorney and the Special Assistant to the United States Attorney have moved this court to review the taxation of the Clerk.

By the rules of both the Supreme Court and the Circuit Court of Appeals no costs are allowed for or against the United States. That these rules were made with full knowledge of the statute governing the taxation of costs in suits of the United States is beyond question. The matter for decision, then, is the status of the instant actions. If they are suits against the United States, as contemplated by the rules of the appellate courts, then the Clerk's taxation was correct; and if not such suits, the taxation was erroneous.

Each action was brought against "D. B. Heiner, individually and as former Collector of Internal Revenue". The Collector not being in office when the suits were brought, the United States could have been made the direct defendant. 28 U.S.C.A. § 41(20). The collections (subject matter of the suits) were made, as appear from the statements of claim, pursuant to assessments by the Commissioner of Internal Revenue, and not on account of any individual trespass by the Collector.

Counsel for plaintiffs base their exceptions to the taxation of costs upon the decision in George Moore Ice Cream Co. v. Rose, Collector, 289 U.S. 373, 53 S.Ct. 620, 623, 77 L.Ed. 1265, opinion by Mr. Justice Cardozo. They claim that since that decision a suit against a Revenue Collector, who has collected a tax pursuant to directions from his superior, is one to be treated differently in no respect from a direct action against the United States; and if so...