Mary P. Laffey et al. v. Northwest Airlines, Inc., Appellant,air Line Pilots Association, Non-aligned Party.mary P. Laffey et al., Appellants, v. Northwest Airlines, Inc.air Line Pilots Association, Non-aligned Party, 587 F.2d 1223 (D.C. Cir. 1978)

29 U.S.C. § 206(d) (1970)

42 U.S.C. §§ 2000e to 2000e-17 (1970 & Supp. V 1975)

Laffey v. Northwest Airlines, Inc., 366 F. Supp. 763 (D.D.C. 1973), Order and supplemental memorandum, 374 F. Supp. 1382 (D.D.C. 1974)

Laffey v. Northwest Airlines, Inc., 185 U.S.App.D.C. 322, 567 F.2d 429 (1976), Cert. denied, 434 U.S. 1086, 98 S. Ct. 1281, 55 L. Ed. 2d 792 (1978)

Pursuant to Fed. R. App. P. 35(b), 40(a)

Laffey v. Northwest Airlines, Inc., No. 74-1791 (D.C. Cir. Sept. 8, 1977) (orders denying rehearing and rehearing En banc)

"(C)ounsel believed that where, as here, it is known that a petition for rehearing will be filed, Rule 39(c) is complied with by timely filing in relation to the order respecting rehearing." Motion for Leave to File P 1 (filed Sept. 23, 1977). We note, however, that the bill of costs was tardy by one day even under counsel's view of timeliness

The only item not in that category is the docketing fee of $50

See note 18 Infra

Fed. R. App. P. 39(c). "Rule 39(c) does not purport to set forth the items that comprise costs on appeal. This matter is covered by (28 U.S.C. § 1920 (1970)). The rule does make it explicit, however, that the cost of printing or otherwise producing briefs, appendices, or copies of records authorized under Rule 30(f), are allowable items." 9 J. Moore, Federal Practice, P 239.02(3), at 4305 (2d ed. 1948)

Fed. R. App. P. 36

A timely petition for rehearing does stay the mandate until disposition of the petition unless otherwise ordered by the Court. Fed. R. App. P. 41(a). The Appellate Rules contain no comparable provision, however, for suspension of the period within which a bill of costs may be filed

Stern v. United States Gypsum, Inc., 560 F.2d 865, 866 (7th Cir. 1977)

With exceptions not here relevant, "(t)he court for good cause shown may upon motion enlarge the time prescribed by these rules or by its order for doing any act, or may permit an act to be done after the expiration of such time . . . ." Fed. R. App. P. 26(b). It is clear that the authority thus conferred encompasses extensions of time for filing bills of costs. E. g., Saunders v. Washington Area Metropolitan Transit Auth., 164 U.S.App.D.C. 224, 227, 505 F.2d 331, 334 (1974); Stern v. United States Gypsum, Inc., supra note 13, 560 F.2d at 866; Denofre v. Transportation Ins. Rating Bureau, 560 F.2d 859, 860-861 (7th Cir. 1977)

Accord, Stern v. United States Gypsum, Inc., supra note 13, 560 F.2d at 866. The only excuse proffered in Stern was that "counsel 'reasonably and in good faith believe(d) it was timely . . . when we attempted to file it,' " and that, the court held, was not enough. Id

Saunders v. Washington Metropolitan Area Transit Auth., supra note 14, is readily distinguishable from the case at bar. The appellant there was unable to comply with Rule 39(c)'s time limit because the appellee did not forward a printer's invoice until five months after entry of judgment on appeal. Without the invoice, which documented a substantial portion of the costs, the appellant could not prepare a complete bill. Failure to timely file it was thus due in part to inaction of the appellee, over whom the appellant had no control. See 164 U.S.App.D.C. at 227, 505 F.2d at 334. Here, however, there is not even a whisper that Northwest did anything that might serve to excuse the claimant's noncompliance with Rule 39(c)

Id. at 227, 505 F.2d at 334

We are mindful that among the costs sought to be taxed is a $50 docketing fee. See note 8 Supra and accompanying text. This item may not be subject to the 14-day stricture of Rule 39(c). Although the 14-day limit plainly governs claims to recoup the expense of printing "briefs, appendices, or copies of records authorized by Rule 30(f)," its applicability to recoverable costs of other kinds is somewhat less clear. The words "such costs" in Rule 39(c) could be read as referable only to items within one of the quoted categories or, more expansively, to cost items of any sort allowable under Rule 39(a) and (b) as well. See text Supra at notes 9-10. Ambiguity in this regard will be eliminated if proposed amendments to Rule 39(c)-(d) are adopted. See Judicial Conference of the United States, Committee of Rules of Practice and Procedure, Preliminary Draft of Proposed Amendments to the Federal Rules of Appellate Procedure 22-23 (Apr. 1977)

We need not resolve the question whether Rule 39 as presently constituted imposes a requirement that claims to recover the docketing fee must be filed within 14 days from entry of judgment, for we are satisfied that in no event should the present claim be allowed. The touchstone of cost-awards is judicial discretion, Rule 39(a); Delta Air Lines, Inc. v. CAB, 164 U.S.App.D.C. 279, 280, 505 F.2d 386, 387 (1974) a discretion tempered by the policy favoring promptness in submission of costs for taxation. See test Supra at note 17. Rule 39(d) directs the clerk to "prepare and certify an itemized statement of costs taxed in the court of appeals for insertion in the mandate," which pursuant to Rule 41(a) normally issues 21 days after entry of judgment. Moreover, in terms of the desirability of early taxation, no good reason for distinguishing between types of costs is apparent. Judicial discretion is unsoundly exercised when it results in grossly divergent treatment of items not warranting differentiation. We conclude, then, that the 11-months-delayed effort to recapture the docketing fee must fail.