United States v. Lynd

• Citation: 334 F.2d 13
• Decision Date: 07 July 1964
• Docket Number: No. 19576.,19576.
• Parties: UNITED STATES of America, Petitioner, v. Theron C. LYND, Circuit Clerk and Registrar of Voters of Forrest County, State of Mississippi, Respondent.
• Court: United States Courts of Appeals. United States Court of Appeals (5th Circuit)

334 F.2d 13 (1964)

UNITED STATES of America, Petitioner, v. Theron C. LYND, Circuit Clerk and Registrar of Voters of Forrest County, State of Mississippi, Respondent.

No. 19576.

United States Court of Appeals Fifth Circuit.

July 7, 1964.

John Doar, Harold Greene, Attys., Dept. of Justice, Washington, D. C., Burke Marshall, Asst. Atty. Gen., Robert E. Hauberg, U. S. Atty., Isabel L. Blair, Atty., Dept. of Justice, Washington, D. C., for petitioner.

Joe T. Patterson, Atty. Gen., Dugas Shands, Asst. Atty. Gen., Peter M. Stockett, Jr., Sp. Asst. Atty. Gen., Jackson, Miss., M. M. Roberts, Francis T. Zachary, Hattiesburg, Miss., Will S. Wells and Guy N. Rogers, Asst. Attys. Gen., and Darryl A. Hurt, Sp. Asst. Atty. Gen., Edward L. Cates, Jackson, Miss., for respondent.

Before BROWN, WISDOM and BELL, Circuit Judges.

PER CURIAM.

The United States as Petitioner in the within matter claimed costs incident to enforcement of the final judgment of civil contempt entered against Respondent Lynd. The court instructed the clerk of this court to make the initial assessment, without prejudice however to the right of either party to appeal such assessment if any, as might be made to the court. The United States claimed a total of $5,856.58 in costs. The clerk allowed the sum of $4,933.84. Respondent has moved for relief from the order of the clerk.

Upon due consideration it appears that the order of the clerk is supported by the facts and applicable law except Item III(c) in the amount of $410.00 which is the cost of transcribing the further argument of July 8, 1963. This argument was transcribed at the instance of the United States ex mero moto, and the allowance of the expense thereof would vary from the usual practice in this court described in the memorandum opinion and order of the clerk. That opinion and order is printed in the margin.^* It must be and is modified to strike and set aside this item.

Save for this modification, the motion of Respondent is in all respects denied.

ON PETITIONER'S MOTION FOR TAXATION OF COSTS

CLERK'S MEMORANDUM ON TAXATION OF COSTS

Final judgment was entered by this Court (Judges Brown, Wisdom and Bell) against respondent, Theron C. Lynd, in this civil contempt proceeding on July 15, 1963. Subsequently, on October 3, 1963, the United States, as petitioner, filed its proposed Bill of Costs, together with affidavits and letter-brief in support, in which costs were itemized in the total amount of $5,856.58,¹ which amount was claimed as properly taxable by this Court as incident to enforcement of its judgment via this contempt proceeding.

On October 21, 1963, counsel for respondent Lynd filed their Answer to Bill of Costs, with supporting affidavit, in which specific defenses to assessment of the various items of costs as claimed by the Government were set forth, mainly as follows: (1) that none of the costs claimed were properly allowable or taxable under any statute, rule, order or practice of this Court (citing McWilliams Dredging Co. v. Department of Highways of La., 5th Cir., 1951, 187 F.2d 61, and Parkerson v. Borst, 5th Cir., 1919, 256 F. 827); and, in fact, this Court's own Rule 31² "shows a clear intent * * * not to allow costs for or against the United States" in such cases; (2) costs identified with any part of Title 42 U.S.C. § 1971 et seq. relate to those incurred in voter registration cases tried before the district courts, and that statute is not applicable so as to justify taxation of such costs in favor of the United States in civil contempt cases decided by this Court; (3) any decision as to the taxation of such costs should await a determination by the Supreme Court of respondent's then pending petition for writ of certiorari; and (4) in any event, there is no support or justification in fact for the specific charges for particular items of costs, such as clerk's and marshal's fees, court reporter's fees, witness fees (including F.B.I. agents), fees for exemplifying and furnishing copies of papers, docket fees, etc.

On October 30, 1963, counsel for the petitioner filed a further letter-response in support of its position that (1) the costs as itemized may properly be taxed in this proceeding in favor of the United States, notwithstanding the proviso of this Court's Rule 31(4), footnote 2, supra, and under other settled principles of general law and authority; and (2) petitioner is entitled to have taxed as costs the fees of all its witnesses, notwithstanding respondent's contrary position and authority cited in its answer to the effect that fees of witnesses present at the trial but not called to testify were not properly taxable in view of the presumption that they were unnecessarily subpoenaed. See Simpkins v. Atchison T. & S. F. R. Co., 61 F. 999 (W.D. Mo., 1894).

Petitioner's proposed Bill of Costs, respondent's answer and petitioner's further letter-response were formally submitted to the Court on October 29, 1963. On November 8, 1963, this Court directed that further action on the question of costs be deferred pending disposition of respondent's petition for writ of certiorari then still pending in the Supreme Court, and the parties were advised accordingly. On January 15, 1964, the Supreme Court's order entered on January 6, 1964, denying respondent's petition for writ of certiorari, was received and filed in the office of the Clerk of this Court. On January 21, 1964, the Court was so advised and the matter was formally reinstated on the docket for the Court's further consideration as of that same date. On February 17, 1964, the Clerk of this Court was instructed to make this formal, initial assessment of allowable costs for this Court according to the practice in the district courts,³ following a hearing thereon if either party requested a hearing, but with the assessment otherwise to be made on the record and papers on file, and without prejudice to the right of either party to take an appeal to the panel which had heretofore rendered the judgment of civil contempt herein (Judges Brown, Wisdom and Bell) from such portion of the costs assessment as might form the basis of an objection. On March 2, 1964, after preliminary consideration of the matter, the parties were advised accordingly, and were also requested to file any further papers in support of their respective positions which they might wish considered. Some delay has since been necessary in order to insure overall receipt of all pertinent papers, as well as access to and study of material excerpts of the record and the applicable statutes and authorities. However, it is believed that ample time has now been allowed for full consideration by all, and it is noted that neither party has since requested a hearing on all or any of the disputed cost items, or otherwise proffered any further supporting affidavits, memoranda, or the like. Accordingly, the Clerk's initial assessment of costs is being made herewith on the papers and record on file.

I. General Taxability of Costs.

On the main issue of whether any costs are properly taxable as a matter of law, petitioner's counsel quotes the general rule to the effect that, in a civil contempt proceeding, "the court, as part of its order, may fine or otherwise charge the defendant with the expenses and damages caused to plaintiff by the disobedience of the order which constitutes the contempt." Rivers v. Miller, 112 F.2d 439, 443, (5th Cir., 1940); see also 17 C.J.S. Contempt, §§ 96, 127; 12 Am. Jur., Contempt, Sec. 79; Cf. N. L. R. B. v. Red Arrow Freight Lines, Inc. et al. (5th Cir., 1954) 213 F.2d 260, 265. While conceding that in the absence of an enabling statute, costs cannot under the doctrine of sovereign immunity be taxed against the United States, petitioner nevertheless argues that this rule does not prohibit the Government from recovering costs, at least in civil cases, to the same extent as a private individual. Pine River Logging & Improvement Co. v. United States, 186 U.S. 279, 296, 22 S.Ct. 920, 46 L.Ed. 1164 (1902); United States v. Jardine (5th Cir. 1936), 81 F.2d 747, 748, Cf. James Shewan & Sons, Inc. v. United States, 267 U.S. 86, 45 S.Ct. 238, 69 L.Ed. 527. See also 42 U.S.C. § 1971(c).

With all deference to respondent's contrary arguments, on logic and principle no sound reason or justification is apparent for limiting the applicability of these well settled rules so as to allow costs in favor of the United States only in those civil contempt proceedings brought in, and in which it has prevailed before, the district courts. To the contrary, no statute, rule, order, usage or practice of this Court has been cited or appears applicable to preclude taxation of such costs in favor of the United States in civil contempt proceedings adjudicated by this Court, in the exercise of its original, inherent jurisdiction to vindicate the integrity of its own judicial process. Cf. Kemart Corp. v. Printing Arts Research Lab., Inc., 232 F.2d 897, 57 A.L.R.2d 1234 (9th Cir. 1956); McWilliams Dredging Co. v. Department of Highways of La., supra; The Daniel Kern, 29 F.2d 288 (D.C., W.D.Washington, 1928). This Court's Rule 31, subsections (1) through (3), (ftn. 2, supra) speaks in precise terms of, and is obviously referable and restricted to, allowance of costs upon dismissal, affirmance or reversal of a regular appeal, and consequently the prohibition of subsection (4) is not applicable to prohibit this Court's discretionary allowance of costs to petitioner in this particular proceeding under general principles of law, and consistent with its initial order, the judgment heretofore entered, and the general custom and practice of assessing costs in civil contempt cases against the losing party. See Rule 54(a), F.R.C.P.; Toledo Scale Co. v. Computing Scale Co., 261 U.S. 399, 426, 43 S.Ct. 458, 67 L.Ed. 719; Schauffler v. United States Assoc. of Journeymen etc., 246 F.2d 867, 870 (3rd Cir., 1957); In re Federal Facilities Realty Trust, 227 F.2d 657, 658...