Winniczek, Hilary M. v. Nagelberg, Sheldon ( 2005 )

In the
United States Court of Appeals
For the Seventh Circuit
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No. 04-2106
HILARY MAREK WINNICZEK and
DANUTA WINNICZEK,
Plaintiffs-Appellants,
v.
SHELDON B. NAGELBERG,
Defendant-Appellee.
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Objection to Bill of Costs
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SUBMITTED FEBRUARY 1, 2005—DECIDED MARCH 8, 2005
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Before BAUER, POSNER, and EASTERBROOK, Circuit Judges.
PER CURIAM. After we reversed the judgment, 394 F.3d
505 (7th Cir. 2005), the appellants submitted a bill of costs in
the amount of $827. The appellee objects to certain items.
One of his objections presents a novel question; hence this
opinion. The bill of costs includes this court’s docketing fee
of $250 (an amount fixed by the Judicial Conference of the
United States, exercising power delegated to it by 28 U.S.C.
§ 1913). The Practitioner’s Handbook for Appeals to the United
States Court of Appeals for the Seventh Circuit 88 (2003),
2 No. 04-2106
published by this court, states that the docketing fee is tax-
able as costs. But the Handbook is not a source of law; and in
Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S. 437 (1987), the
Supreme Court ruled that Fed. R. Civ. P. 54(d), which
authorizes the taxing of costs in the district court, allows
only those items to be taxed that are listed in the costs
statute, 28 U.S.C. § 1920. See, besides the Crawford decision,
West Virginia University Hospitals, Inc. v. Casey, 499 U.S. 83,
87 (1991) (fees of experts who testified at trial); Cengr v.
Fusibond Piping Systems, Inc., 135 F.3d 445, 454 (7th Cir.
1998) (cost of deposition transcripts); Collins v. Gorman, 96
F.3d 1057, 1058 (7th Cir. 1996) (marshal’s fees).
The counterpart to Rule 54(d) of the civil rules is Rule 39
of the appellate rules, and since section 1920 applies to all
federal courts, Rule 39 should likewise be subject to that
statute. It might seem that Rule 39, unlike Rule 54(d)(1), lists
specific items that can be taxed as costs, setting up a
possible conflict with the statute; but this is incorrect. The
references in the rule to specific items are merely proce-
dural: Rule 39(c) directs the courts of appeals to fix the max-
imum rate for taxing the cost of copies and Rule 39(e) lists
four types of cost on appeal that must be obtained from the
district court rather than from the court of appeals. There is
no attempt to broaden the list of taxable items that appears
in section 1920.
So, for the docketing fee in this court to be recoverable as
costs, it has to be fitted into one of the categories listed in
the statute. The only possibility is “fees of the clerk.” 29
U.S.C. § 1920(1). A docketing fee is a fee charged by a court
for filing a claim, and the clerk is the court official who
administers the collection of court fees. So we think the
docketing fee is a proper cost item, as other courts have
assumed, Seyler v. Seyler, 678 F.2d 29, 31 (5th Cir. 1982)
(citing Rule 39); Northcross v. Board of Education, 611 F.2d
No. 04-2106 3
624, 639-40 (6th Cir. 1980) (citing Rule 39 and § 1920); In re
Penn Central Transportation Co., 630 F.2d 183, 191 (3d Cir.
1980) (same); Saunders v. Washington Metropolitan Area
Transit Authority, 505 F.2d 331, 332 and 334 (D.C. Cir. 1974)
(per curiam) (same), though without discussion of the point.
The docketing fee will therefore be allowed; with other
adjustments unnecessary to discuss, the appellants are
awarded fees in this court in the total amount of $482.20.
A true Copy:
Teste:
_____________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—3-8-05