Appellate costs

In long-running litigation about liability for hotel occupancy taxes, the Fifth Circuit’s prior mandate said that “plaintiff-appellee cross-appellant pay to defendants-appellants cross appellees the  costs on appeal to be taxed by the Clerk of this Court.” The Court held that this language did not preclude the trial court clerk from assessing appropriate costs on remand pursuant to Fed. R. Civ. P. 39(e).

The Court also held: “The fact that the decretal language in the first appeal used the word ‘vacated’ instead of ‘reversed’ does not change this result. . . . While an argument can be made that ‘reversed’ might have been the better choice for the decretal language in the first appeal, what matters for purposes of Rule 39(a) is the substance of the disposition, not merely the form.” San Antonio v. Hotels.com, No. 19-50701 (May 11, 2020) (citations omitted, emphasis in original).

PRACTICE TIP: Fed. R. App. P. 39(e)(3) includes “premiums paid for a bond or other security to preserve rights pending appeal” as a taxable cost–in this litigation, a cost exceeding $2 million.