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In re Penn Central Transportation Co.

September 3, 1980


Before Aldisert, Gibbons and Higginbotham, Circuit Judges.

Author: Aldisert


Before us are a bill of costs and objections thereto arising out of several appeals previously decided by this court.*fn1 We hold that the clerk of this court properly referred this extraordinarily complex dispute to us, and that, with certain modifications detailed below, costs will be taxed in accordance with the bill.

On January 11, 1979, this court issued four opinions and entered judgment in the remaining eighty-one docketed appeals taken from the plan of reorganization approved in a series of district court opinions styled In re Penn Central Transportation Co., 458 F. Supp. 1234 (E.D.Pa.1978); id. at 1346; id. at 1357; id. at 1364. Fifty-seven of the appeals had previously been dismissed by stipulation pursuant to Fed. R. App. P. 42(b). On January 25, 1979, the successful appellees, trustees of the property of Penn Central and a group of secured bank creditors and trustees of other railroads, collectively known as the "Friday Group," filed a verified bill of costs in the office of the clerk pursuant to Fed. R. App. P. 39(d).*fn2 Thereafter, in accordance with the rules, some of the unsuccessful appellants filed timely objections to the bill of costs. Consideration of the bill of costs and objections was properly held in abeyance until the Supreme Court denied two petitions for writ of certiorari relevant to this litigation.

In accordance with the practice of this court, the bill of costs and objections were initially referred to the clerk. After preliminary review of the contentions, the clerk deemed it necessary to refer the matter to the court. Although the clerk is accorded certain powers to execute his ministerial duties, see Fed. R. App. P. 45, and although the court may authorize the clerk to act on certain procedural motions, see 28 U.S.C. ยง 956, the unusual circumstances of this case*fn3 persuade us that the matter is properly before us. When the movant claims a substantial amount in printing expenses, when the issues presented require legal determinations, and when the result turns on equitable and discretionary considerations, we conclude that this court may issue the ruling on costs.


Prior to consideration of the issues presented, a cursory recitation of the relevant procedural history is necessary. On April 10, 1978, appellants filed a timely notice of appeal from the order of the reorganization court in the district court. The initial appeals were docketed in this court on June 2, 1978. Prior to docketing, counsel for trustees submitted an omnibus motion suggesting various procedures to expedite disposition of the appeals. In pertinent part, appellees suggested the following procedure set forth in Fed. R. App. P. 30(b) with respect to filing an appendix:

4. Rather than to require each Appellant separately to designate for transmittal those parts of the record upon which it intends to rely, the Trustees have proposed, and substantially all Appellants have agreed to, the following alternative procedure. Appellants would be required to advise the Trustees, within a week of the date of the entry of the order requested by this Motion, of the documents upon which they intend to rely. The Trustees would undertake to (assemble) such documents, as well as additional parts of the record upon which the Trustees intend to rely, and promptly to produce a single joint appendix, at no cost to Appellants, for all appeals. Sufficient copies of the joint appendix would be distributed to the parties and filed with the Court.

Motion dated May 12, 1978 (emphasis added).

By order dated May 19, 1978, the clerk, Thomas F. Quinn, Esquire, denied the motion as presented and directed that:

the appellees-Trustees prepare, file and serve a joint appendix for these appeals in accordance with a schedule which will be set forth below. The cost of the appendix is to be borne exclusively by appellees-Trustees in the first instance, subject to the provisions of Rule 39, F.R.A.P., upon final disposition of these appeals by this Court . . . .

In accordance with the clerk's order, the appellees filed and served a seven-volume joint appendix on June 21, 1978. Thereafter, between June 26 and July 3, 1978, briefs on behalf of appellants, presenting their arguments jointly and severally, were filed. Appellees filed their briefs from July 26 through August 4, 1978. Reply briefs and briefs amicus curiae were subsequently filed.

Beginning July 10, 1978, after the filing of the joint appendix and the briefs of the appellants, the first of a series of motions to dismiss particular appeals pursuant to Fed. R. App. P. 42(b) were filed. The clerk forwarded the motions to the court, and we, in due course, granted all the motions.*fn4 With two exceptions, all the orders dismissed the appeals with prejudice and stated that each party was "to bear its own costs." With respect to the two remaining motions, the operative language mandated that the parties "withdraw the said appeals without costs to any party."

After the filing of all the briefs and various motions not here relevant, the court heard oral argument on certain groups of the appeals on October 16 and 17, 1978, and accepted other appeals for consideration on the briefs under Third Cir.R. 12(6). On ...

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