San Antonio v. Hotels.com, L. P.

(Slip Opinion) OCTOBER TERM, 2020 1
Syllabus
NOTE: Where it is feasible, a syllabus (headnote) will be released, as is
being done in connection with this case, at the time the opinion is issued.
The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader.
See United States v. Detroit Timber & Lumber Co., 200 U. S. 321, 337.
SUPREME COURT OF THE UNITED STATES
Syllabus
CITY OF SAN ANTONIO, TEXAS, ON BEHALF OF ITSELF
AND ALL OTHER SIMILARLY SITUATED TEXAS
MUNICIPALITIES v. HOTELS.COM, L. P., ET AL.
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR
THE FIFTH CIRCUIT
No. 20–334. Argued April 21, 2021—Decided May 27, 2021
The City of San Antonio—acting on behalf of a class of 173 Texas munic-
ipalities—was awarded a multi-million dollar judgment in Federal
District Court against a number of popular online travel companies
(OTCs) over the calculation of hotel occupancy taxes. To prevent exe-
cution on that judgment pending appeal, the OTCs obtained super-
sedeas bonds securing the judgment. See Fed. Rule Civ. Proc. 62. On
appeal, the Court of Appeals determined that the OTCs had not un-
derpaid on their taxes. In accordance with Federal Rule of Appellate
Procedure 39(d), the OTCs filed with the circuit clerk a bill of costs
seeking appellate docketing fees and printing costs, which were taxed
without objection. The OTCs then filed a bill of costs in the District
Court seeking more than $2.3 million in costs—primarily for premi-
ums paid on the supersedeas bonds that are listed in Rule 39(e) as
“taxable in the district court for the benefit of the party entitled to
costs.” San Antonio objected and urged the District Court to exercise
its discretion to decline to tax all or most of those costs. The District
Court held that it had no discretion to deny or reduce those costs under
Circuit precedent. The Court of Appeals affirmed, reasoning that the
District Court lacked discretion to deny or reduce appellate cost
awards.
Held: Rule 39 does not permit a district court to alter a court of appeals’
allocation of the costs listed in subdivision (e) of that Rule. Pp. 5–14.
(a) Rule 39 creates a cohesive scheme for taxing appellate costs that
gives discretion over the allocation of appellate costs to the courts of
appeals. Rule 39(a) sets out default rules for cost allocation based on
2 SAN ANTONIO v. HOTELS.COM, L. P.
Syllabus
the outcome of an appeal and provides that these default rules apply
unless the court “orders otherwise.” Nothing in the broad language of
Rule 39(a) suggests that a court of appeals may not divide up costs in
such an order. Quite the opposite, Rule 39(a)(4) suggests that a court
of appeals may apportion costs based on each party’s relative success
when the results of the appeal are something other than complete af-
firmance or reversal. Rule 39(e) points in the same direction; it ad-
dresses appellate costs taxable in the district court for the benefit of
“the party entitled to costs” under the rule (not to a party entitled to
seek costs). The court of appeals’ determination that a party is “enti-
tled” to a certain percentage of costs would mean little if the district
court could take a second look at the equities. San Antonio contends
that the plain text of subsection (e) providing for costs “taxable in the
district court” vests district courts with discretion over cost allocations,
but that interpretation reads too much into the term “taxable” and ig-
nores the history of the Rule. The real work done by the phrase “tax-
able in the district court” is in specifying the court in which these costs
are to be taxed. Pp. 5–9.
(b) The Court is not persuaded that applying the plain text of Rule
39 will create the problems that San Antonio envisions. First, award-
ing costs incurred prior to appeal is different from taxing appellate
costs. Limiting a district court’s discretion to allocate appellate costs
will not cause confusion with the equitable discretion district courts
exercise with respect to certain costs incurred in the district court that
are customarily taxed under Federal Rule of Civil Procedure 54(d).
Second, there is no evidence to suggest that appellate courts have
struggled to allocate appellate costs due to factual disputes better han-
dled by the district court. And nothing in the Court’s decision should
be read to cast doubt on the approach taken by some courts of appeals
to delegate this responsibility to the district court. See, e.g., Emmeneg-
ger v. Bull Moose Tube Co., 324 F. 3d 616, 626. Third, it makes sense
for the district court to tax the costs in Rule 39(e) because those costs
relate to events in that court. This process requires more than a “min-
isterial order,” as San Antonio would have it, because the district court
will ensure that the amount of appellate costs requested is “correct,”
28 U. S. C. §1924, and that the cost submissions otherwise comply with
the relevant rules and statutes. Finally, that the current rules and
relevant statutes could specify more clearly the procedure that a party
should follow to obtain review of their objections to Rule 39(e) costs in
the court of appeals does not mean that a district court can reallocate
those costs. A simple motion “for an order” under Rule 27 should suf-
fice to seek an order under Rule 39(a), and the Court does not foreclose
parties from raising their arguments through other procedural vehi-
cles. Pp. 9–13.
Cite as: 593 U. S. ____ (2021) 3
Syllabus
959 F. 3d 159, affirmed.
ALITO, J., delivered the opinion for a unanimous Court.
Cite as: 593 U. S. ____ (2021) 1
Opinion of the Court
NOTICE: This opinion is subject to formal revision before publication in the
preliminary print of the United States Reports. Readers are requested to
notify the Reporter of Decisions, Supreme Court of the United States, Wash-
ington, D. C. 20543, of any typographical or other formal errors, in order that
corrections may be made before the preliminary print goes to press.
SUPREME COURT OF THE UNITED STATES
_________________
No. 20–334
_________________
CITY OF SAN ANTONIO, TEXAS, ON BEHALF OF ITSELF
AND ALL OTHER SIMILARLY SITUATED TEXAS
MUNICIPALITIES, PETITIONER v.
HOTELS.COM, L. P., ET AL.
ON WRIT OF CERTIORARI TO THE UNITED STATES COURT OF
APPEALS FOR THE FIFTH CIRCUIT
[May 27, 2021]
JUSTICE ALITO delivered the opinion of the Court.
Civil litigation in the federal courts is often an expensive
affair, and each party, win or lose, generally bears many of
its own litigation expenses, including attorney’s fees that
are subject to the so-called American Rule. Baker Botts L.
L. P. v. ASARCO LLC, 576 U. S. 121, 126 (2015). But cer-
tain “costs” are treated differently. Federal Rule of Appel-
late Procedure 39 governs the taxation of appellate “costs,”
and the question in this case is whether a district court has
the discretion to deny or reduce those costs. We hold that
it does not and therefore affirm the judgment below.
I
A
There is a longstanding tradition of awarding certain
costs other than attorney’s fees to prevailing parties in the
federal courts. Marx v. General Revenue Corp., 568 U. S.
371, 377, and n. 3 (2013); see, e.g., Winchester v. Jackson, 3
Cranch 514 (1806). Today, Federal Rule of Appellate Pro-
cedure 39 sets out the procedure for assessing and taxing
2 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
costs relating to appeals. Subdivision (a) provides a series
of default rules that govern “unless the law provides or the
court orders otherwise.” Under these default rules:
“(1) if an appeal is dismissed, costs are taxed against
the appellant, unless the parties agree otherwise;
“(2) if a judgment is affirmed, costs are taxed against
the appellant;
“(3) if a judgment is reversed, costs are taxed against
the appellee;
“(4) if a judgment is affirmed in part, reversed in
part, modified, or vacated, costs are taxed only as the
court orders.”
The remaining subdivisions of the Rule deal with related
issues. Subdivision (b) limits costs for or against Federal
Government litigants to those “authorized by law.” Subdi-
vision (c) directs the courts of appeals to fix a maximum rate
for taxing the costs of briefs, appendices, and (where appli-
cable) the original record. Subdivision (d) provides the pro-
cedure for seeking certain appellate costs, filing objections
to those costs, and preparing an itemized statement of costs
for insertion in the mandate. And subdivision (e) lists four
categories of “costs on appeal” that “are taxable in the dis-
trict court for the benefit of the party entitled to costs under
this rule.”
This case concerns one of the categories of costs that are
taxable in the district court under subdivision (e): “premi-
ums paid for a bond or other security to preserve rights
pending appeal.” Fed. Rule App. Proc. 39(e)(3). These costs
arise because the Federal Rules of Civil Procedure gener-
ally stay the execution or enforcement of a district court
judgment for only 30 days after its entry. Fed. Rule Civ.
Proc. 62(a). Unless a further stay is granted, the prevailing
party can attempt to execute on that judgment while an ap-
peal is pending. See 12 J. Moore, D. Coquillette, G. Joseph,
G. Vairo, & C. Varner, Moore’s Federal Practice §62.02 (3d
Cite as: 593 U. S. ____ (2021) 3
Opinion of the Court
ed. 2020). To prevent complications arising from pre-appeal
enforcement of judgments, Federal Rule of Civil Procedure
62(b) provides that a party “may obtain a stay by providing
a bond or other security.” These bonds are often called su-
persedeas bonds, tracking the name of a traditional writ
that was used to stay the execution of a legal judgment.
See, e.g., Hardeman v. Anderson, 4 How. 640, 642 (1846)
(issuing a “writ of supersedeas to stay execution on the
judgment”). “A supersedeas bond is a contract by which a
surety obligates itself to pay a final judgment rendered
against its principal under the conditions stated in the
bond.” 13 A Cyclopedia of Federal Procedure §62.19 (3d ed.
Supp. 2021).
B
The cost dispute before us arises out of litigation between
the city of San Antonio—acting on behalf of a class of 173
Texas municipalities—and a number of popular online
travel companies (OTCs). In 2006, San Antonio alleged
that the OTCs had been systematically underpaying hotel
occupancy taxes by calculating them using the wholesale
rate that the OTCs negotiated with hotels rather than the
retail rate that consumers paid for hotel rooms. After a jury
trial, the District Court entered a judgment of approxi-
mately $55 million in favor of the class.
The OTCs quickly sought to secure supersedeas bonds to
stay the judgment. They negotiated with San Antonio over
the terms of the bonds, and the city ultimately supported
the OTCs’ efforts to stay the judgment with supersedeas
bonds totaling almost $69 million, an amount that was cal-
culated to cover the judgment plus 18 months of interest
and further taxes. The District Court approved the bonds,
which were subsequently increased at San Antonio’s urging
to cover what grew to be an $84 million judgment after
years of post-trial motions.
The OTCs eventually appealed, and the Court of Appeals
4 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
held that the OTCs had not underpaid the hotel occupancy
taxes. Its mandate stated: “[T]he judgment of the District
Court is vacated and rendered for OTCs.” App. 100. In ac-
cordance with Federal Rule of Appellate Procedure 39(d),
the OTCs filed a bill of costs with the Circuit Clerk and re-
quested $905.60 to cover the appellate docket fee and the
cost of printing their briefs and appendix. App. to Pet. for
Cert. 28a–30a. These items were taxed without objection.
See Rule 39(d)(2).1
Back in the District Court, the OTCs filed a bill of costs
for more than $2.3 million. The lion’s share of these costs
were supersedeas bond premiums. San Antonio objected,
urging the District Court to exercise its discretion and de-
cline to tax all or most of those costs. The city argued,
among other things, that the OTCs should have pursued al-
ternatives to a supersedeas bond and that it was unfair for
San Antonio to bear the costs for the entire class rather
than just its proportional share of the judgment. The Dis-
trict Court thought San Antonio had made “some persua-
sive arguments.” App. to Pet. for Cert. 16a. But based on
Circuit precedent, the court held that it lacked discretion
“regarding whether, when, to what extent, or to which party
to award costs of the appeal” and that “its sole responsibil-
ity [was] to ensure that only proper costs are awarded.” Id.,
at 17a (internal quotation marks omitted). The court ulti-
mately taxed costs of just over $2.2 million.
San Antonio appealed, and this time the Court of Appeals
affirmed. 959 F. 3d 159 (CA5 2020). It reasoned that its
earlier decision had “reversed” the District Court’s judg-
ment within the meaning of Rule 39(a)(3) and that it had
not departed from the default allocation under that Rule.
——————
1 Rule 39 has been amended since the Court of Appeals issued its first
decision in this case. The changes are not material for our purposes here,
so for simplicity we cite the current version of the Federal Rules of Ap-
pellate Procedure unless otherwise noted.
Cite as: 593 U. S. ____ (2021) 5
Opinion of the Court
Id., at 164–165.2 And the Court of Appeals held that the
District Court was compelled to award the disputed costs to
the OTCs. Id., at 166–167.
San Antonio sought this Court’s review. We granted cer-
tiorari, 592 U. S. ___ (2021), and now affirm.
II
We hold that Rule 39 does not permit a district court to
alter a court of appeals’ allocation of the costs listed in sub-
division (e) of that Rule.
A
Rule 39 creates a cohesive scheme for taxing appellate
costs. As noted, it sets out default rules that are geared to
five potential outcomes of an appeal: dismissal, affirmance,
reversal, affirmance in part and reversal in part, and vaca-
tur. Each of these default rules tracks the “venerable pre-
sumption that prevailing parties are entitled to costs.”
Marx, 568 U. S., at 377.
These default rules give way, however, when “the court
orders otherwise.” Rule 39(a). The parties agree that this
reference to “the court” means the court of appeals, not the
district court, see Brief for Petitioner 17–18; Brief for Re-
spondents 20–21, and we agree with that interpretation. In
the Rules of Appellate Procedure, which “govern procedure
in the United States courts of appeals,” Rule 1(a)(1), refer-
ences to a “court” are naturally read to refer to a court of
appeals unless the text or context clearly indicates other-
wise.
The parties do not agree, however, on what the court of
appeals has the power to “orde[r].” San Antonio thinks that
the appellate court may say “who can receive costs (party
A, party B, or neither)” but lacks “authority to divide up
costs.” Reply Brief 5. So, the city argues, the district court
——————
2 San Antonio does not challenge these features of the court’s decision,
see, e.g., Brief for Petitioner 8, n. 2, and we do not address them.
6 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
must have the discretion to do that. By contrast, the OTCs
argue that the appellate court has the discretion to divide
up the costs as it deems appropriate and that a district
court cannot alter that allocation. The OTCs have the bet-
ter of the argument.
The text of subdivision (a) cuts decisively in their favor.
That provision states that the court of appeals need not fol-
low the default rules, which allocate costs based on the out-
come of the appeal, but can “orde[r] otherwise.” This broad
language does not limit the ways in which the court of ap-
peals can depart from the default rules, and it certainly
does not suggest that the court of appeals may not divide
up costs.
On the contrary, the authority of a court of appeals to do
just that is strongly supported by the relationship between
the default rules and the court of appeals’ authority to “or-
der otherwise.” For example, under Rule 39(a)(4), if a dis-
trict court judgment is affirmed in part and reversed in
part, “costs are taxed only as the court [of appeals] orders.”
The most natural meaning of this provision is that a court
of appeals may apportion costs in accordance with the par-
ties’ relative success, so that if, for example, the appellant
wins what is essentially a 75% victory, the appellant can be
awarded 75% of its costs.3 It would be strange to read this
provision to mean that the court of appeals’ only option
where a reversal is not complete is to award the appellant
all its costs or no costs at all. Similarly, in cases that fall
under subdivisions (a)(2) and (a)(3), where the default rules
allocate 100% of the costs to the winning party, it is natural
——————
3 Both parties recognize the familiar practice of awarding some propor-
tion of the costs to the winning party. See Tr. of Oral Arg. 15, 44, 76; see,
e.g., Massachusetts Eye & Ear Infirmary v. QLT Phototherapeutics, Inc.,
552 F. 3d 47, 75 (CA1 2009); In re New Times Securities Servs., Inc., 371
F. 3d 68, 88 (CA2 2004); Burrell v. Star Nursery, Inc., 170 F. 3d 951, 957
(CA9 1999); Quaker Action Group v. Andrus, 559 F. 2d 716, 719 (CADC
1977) (per curiam).
Cite as: 593 U. S. ____ (2021) 7
Opinion of the Court
to understand the court of appeals’ authority to “order oth-
erwise” to include the authority to make a different alloca-
tion.
Subdivision (e), which concerns appellate costs that are
taxed in the district court, points in the same direction. It
refers to “the party entitled to costs under this rule.” Rule
39(e) (emphasis added). Thus, if a party is awarded costs
under subdivision (a), it is “entitled” to those costs—i.e., has
a right to obtain them and not merely to seek them—when
a proper application is made in the district court. See
Black’s Law Dictionary 626 (rev. 4th ed. 1968) (“In its usual
sense, to entitle is to give a right or title”); see also Estate of
Cowart v. Nicklos Drilling Co., 505 U. S. 469, 477 (1992)
(“Both in legal and general usage, the normal meaning of
entitlement includes a right or benefit for which a person
qualifies”).
Read properly, then, Rule 39 gives discretion over the al-
location of appellate costs to the courts of appeals. With
that settled, it is easy to see why district courts cannot ex-
ercise a second layer of discretion. Suppose that a court of
appeals, in a case in which the district court’s judgment is
affirmed, awards the prevailing appellee 70% of its costs. If
the district court, in an exercise of its own discretion, later
reduced those costs by half, the appellee would receive only
35% of its costs—in direct violation of the court of appeals’
directions. Or suppose that the court of appeals, believing
that the decision below was plainly wrong, awards the pre-
vailing appellant 100% of its costs. It would subvert that
allocation if the district court declined to tax costs or sub-
stantially reduced them because it thought that there was
at least a very strong argument in favor of the decision that
the court of appeals had reversed—which, of course, was
the district court’s own decision. In short, the court of ap-
peals’ determination that a party is “entitled” to costs would
mean little if, as San Antonio believes, the district court
could take a second look at the equities.
8 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
San Antonio nonetheless maintains that the plain text of
subdivision (e) vests district courts with discretion over cost
allocations. That provision lists costs that “are taxable in
the district court for the benefit of the party entitled to costs
under this rule.” Rule 39(e) (emphasis added). As San An-
tonio notes, the word “taxable” can be used to describe
something that may, but need not necessarily, be taxed.
See, e.g., Random House Dictionary of the English Lan-
guage 1947 (2d ed. 1987) (defining “taxable” as “capable of
being taxed”); Webster’s Third New International Diction-
ary 2345 (1976) (same). And San Antonio argues that the
use of this “permissive” term shows that the district court
has discretion to refuse to award costs on equitable
grounds. Brief for Petitioner 15.
San Antonio reads too much into the term “taxable.” The
use of that term does suggest that the costs in question are
not automatically or necessarily taxed when the case re-
turns to the district court, but that may mean no more than
that the party seeking those costs will not get them unless
it submits a bill of costs with the verification specified by
statute and complies with any other procedural require-
ments that the local rules of the court in question impose.
See 28 U. S. C. §§1920, 1924.
This modest understanding of the use of the term “taxa-
ble” is reinforced by the circumstances under which the
term was added to Rule 39. Before 1998, subdivision (e) did
not provide that the listed costs “are taxable in the district
court,” but instead stated that those costs “shall be taxed in
the district court.” Rule 39(e) (1994). The language of Rule
39 was changed in 1998 as part of a general “restyling” of
the Rules of Appellate Procedure, and the Advisory Com-
mittee’s Note stated that the changes made as part of this
project were “intended to be stylistic only.” 28 U. S. C. App.,
p. 804 (1994 ed., Supp. IV); see also C. Wright, A. Miller, &
C. Struve, Federal Practice and Procedure, Introduction,
Cite as: 593 U. S. ____ (2021) 9
Opinion of the Court
§3946.1 (5th ed. Supp. 2021) (1998 restyling was “not in-
tended to make substantive changes”).
The real work done by the phrase “taxable in the district
court” is the specification of the court in which these costs
are to be taxed—that is, in the district court. Assigning this
work to the district court makes good sense. Under Rule
39, costs incurred in the court of appeals, such as the fee for
docketing the case in that court and the cost of printing the
party’s briefs and appendices, are taxed in the court of ap-
peals. See Rule 39(d). And the costs incurred in the district
court—that is, the costs listed in subdivision (e)—are taxed
in the district court. These are the costs attributable to “the
preparation and transmission of the record,” “the reporter’s
transcript, if needed to determine the appeal,” “premiums
paid for a bond or other security to preserve rights pending
appeal,” and “the fee for filing the notice of appeal.”
The nature of these costs makes it fitting for them to be
taxed in the district court. The first enumerated cost—the
cost of “the preparation and transmission of the record”—
relates to the district court clerk, who has the responsibility
of performing those tasks. See Fed. Rule App. Proc.
11(b)(2). The second category, the cost of “the reporter’s
transcript,” concerns work done in the district court. See
Rule 10(b). The third category, “premiums paid for a bond
or other security to preserve rights pending appeal,” relates
to a matter previously approved by the district court. See
Fed. Rule Civ. Proc. 62(b). And the last category, “the fee
for filing the notice of appeal,” is an amount that was paid
to the district court clerk. See 28 U. S. C. §1917.
For the reasons set out above, we hold that courts of ap-
peals have the discretion to apportion all the appellate costs
covered by Rule 39 and that district courts cannot alter that
allocation.
B
San Antonio offers a variety of practical arguments why
10 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
district courts should have the discretion to alter the allo-
cation of appellate costs, but each of these arguments falls
away upon inspection.
First, San Antonio argues that any limits on a district
court’s discretion are incompatible with the equitable dis-
cretion district courts exercise with respect to certain costs
incurred in the district court. Those costs are customarily
taxed under Federal Rule of Civil Procedure 54(d), which
“gives courts the discretion to award costs to prevailing par-
ties.” Taniguchi v. Kan Pacific Saipan, Ltd., 566 U. S. 560,
565 (2012); see also 28 U. S. C. §1920 (“A judge or clerk of
any court of the United States may tax as costs the follow-
ing . . . ” (emphasis added)).4 In San Antonio’s view, it will
create confusion if a district court acting under Appellate
Rule 39(e) lacks the discretion it exercises under Civil Pro-
cedure Rule 54(d).
We do not see why our interpretation will lead to confu-
sion. District courts have discretion in awarding costs in-
curred prior to appeal, but when they tax appellate costs,
they perform a different function. This interpretation quite
sensibly gives federal courts at each level primary discre-
tion over costs relating to their own proceedings. See this
Court’s Rule 43; Fed. Rule App. Proc. 39; Fed. Rule Civ.
Proc. 54.
Second, San Antonio contends that appellate courts are
not well-positioned to make cost allocations under Rule
39(a). In its view, decisions about appellate costs might
turn on factual disputes that district courts are better able
——————
4 As the United States points out, see Brief for United States as Amicus
Curiae 19, n. 4, we have interpreted Rule 54(d) to provide for taxing only
the costs already made taxable by statute, namely, 28 U. S. C. §1920.
See Crawford Fitting Co. v. J. T. Gibbons, Inc., 482 U. S. 437, 441–442
(1987). Supersedeas bond premiums, despite being referenced in Appel-
late Rule 39(e)(3), are not listed as taxable costs in §1920. San Antonio
has not raised any argument that Rule 39 is inconsistent with §1920 in
this respect. We accordingly do not consider this issue.
Cite as: 593 U. S. ____ (2021) 11
Opinion of the Court
to resolve. For example, a party might suggest that taxing
costs against it would be unjust because of its precarious
financial position, and an opposing party might dispute
that contention on factual grounds. San Antonio also con-
tends that it will be difficult to allocate appellate costs eq-
uitably before the amount of those costs is known.
These concerns are overblown. Most appellate costs are
readily estimable, rarely disputed, and frankly not large
enough to engender contentious litigation in the great ma-
jority of cases. We recognize that supersedeas bond premi-
ums are a bit of an outlier in that they can grow quite large.
See, e.g., The Exxon Valdez v. Exxon Mobil Corp., 568 F. 3d
1077 (CA9 2009) (more than $60 million). But the underly-
ing supersedeas bonds will often have been negotiated by
the parties, as happened here. They will in any event have
been approved by the district court, see Fed. Rule Civ. Proc.
62(b), and their premiums will have been paid by one of the
parties to the appeal. There is no reason to think that liti-
gants and courts will be forced to operate without any sense
of the magnitude of the costs at issue. Indeed, San Antonio
admits that it was largely aware of the costs of the bonds in
this case when they were approved, see Tr. of Oral Arg. 18.
Nor is there reason to think that factual disputes will
pose a recurring problem. Experience proves the point.
Rule 39’s basic structure has been in place for more than 50
years. Compare Fed. Rule App. Proc. 39 with Rule 39
(1968). And the courts of appeals resolve tens of thousands
of cases each year. Admin. Office of the U. S. Courts, Sta-
tistical Tables for the Federal Judiciary, Table B–1 (Dec.
31, 2020) (counting 46,788 appeals terminated in 2020).
Yet San Antonio has not identified any substantial number
of cases where cost allocations under Rule 39(a) have im-
posed real difficulties. In sum, we see no evidence that ap-
pellate courts have struggled to allocate costs in the past,
and we have no reason to anticipate new problems in the
future.
12 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
In all events, if a court of appeals thinks that a district
court is better suited to allocate the appellate costs listed in
Rule 39(e), the court of appeals may delegate that responsi-
bility to the district court, as several Courts of Appeals have
done in the past. See, e.g., Emmenegger v. Bull Moose Tube
Co., 324 F. 3d 616, 626 (CA8 2003); Guse v. J. C. Penney Co.,
570 F. 2d 679, 681–682 (CA7 1978). The parties agree that
this pragmatic approach is permitted. See Tr. of Oral Arg.
15, 44. And nothing we say here should be read to cast
doubt on it. See Rule 39(a) (imposing no direct limitations
on the court’s ability to “orde[r] otherwise”); Rule 41(a) (the
mandate includes “any direction about costs”).
Third, San Antonio contends that there would be no rea-
son for Rule 39(e) costs to be taxed in the district court, as
opposed to the court of appeals, if the district court was
simply required to enter “a ministerial order.” Brief for Pe-
titioner 17. But it makes sense for these costs to be taxed
in the district court because they relate to events in that
court, and the district court’s responsibility is not ministe-
rial. The district court will ensure that the amount re-
quested for the appellate costs in question is “correct.” 28
U. S. C. §1924. In addition, the district court will consider
whether the costs were “necessarily” incurred, §1924, to the
extent that the costs in question are taxable only if they
were needed for the appeal or to stay the district court’s
judgment pending appeal. See Rule 39(e)(2) (cost of re-
porter’s transcript taxable only “if needed to determine the
appeal”). Other costs taxable in the district court under
Rule 39(e) are either fixed (subdivision (e)(4): the fee for fil-
ing the notice of appeal); calculated by the district court
clerk (subdivision (e)(1): preparation and transmission of
the record); or concern a matter already approved by the
district court (subdivision (e)(3): supersedeas bond premi-
ums; see Fed. Rule Civ. Proc. 62(b)).
San Antonio, however, asked the District Court to do
much more. It implored the court to exercise a free-ranging
Cite as: 593 U. S. ____ (2021) 13
Opinion of the Court
form of equitable discretion that would directly conflict with
the equitable discretion of the Court of Appeals. See Brief
for Petitioner 20, n. 5 (outlining a wide range of equitable
considerations). And it invited the District Court to deny
or reduce for equitable reasons the bona fide costs that the
OTCs had paid as premiums for supersedeas bonds that
were known and negotiated by San Antonio and were ap-
proved by the District Court without objection under Rule
62. The lower courts were correct to hold that the District
Court lacked the authority to entertain San Antonio’s
broad, equitable arguments.
Finally, San Antonio worries that parties will be unable
to obtain review of their objections to Rule 39(e) costs if the
district court cannot provide relief after the matter returns
to that court. We agree that the current Rules and the rel-
evant statutes could specify more clearly the procedure that
such a party should follow to bring their arguments to the
court of appeals, but this does not lead to the conclusion
that a district court can reallocate those costs.
Rule 27 sets forth a generally applicable procedure for
seeking relief in a court of appeals, and a simple motion “for
an order” under Rule 27 should suffice to seek an order un-
der Rule 39(a). Compare Fed. Rule App. Proc. 39(a) (“The
following rules apply unless . . . the court orders otherwise”)
with Rule 27(a) (“An application for an order . . . is made by
motion unless these rules prescribe another form”). The
OTCs also identify instances where parties have raised
their arguments through other procedural vehicles, includ-
ing merits briefing, see Rule 28, objections to a bill of costs,
see Rule 39(d)(2), and petitions for rehearing, see Rule 40.
Brief for Respondents 42, nn. 9–11. We do not foreclose lit-
igants from raising their arguments in any manner con-
sistent with the relevant federal and local Rules.
In short, we are not persuaded that applying the plain
text of Rule 39 will create the practical problems that San
Antonio envisions.
14 SAN ANTONIO v. HOTELS.COM, L. P.
Opinion of the Court
* * *
The judgment of the Court of Appeals is affirmed.
It is so ordered.