American Bottom Conservancy v. United States Army Corps of Engineers et al

Filing 79

ORDER granting 78 Motion for Taxation of Costs of Appeal brought by Plaintiff American Bottom Conservancy; see attached order for details. Signed by Judge G. Patrick Murphy on 11/16/2011. (jhs)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS
AMERICAN BOTTOM CONSERVANCY, )
)
Plaintiff,
)
)
vs.
)
)
UNITED STATES ARMY CORPS OF )
ENGINEERS, COLONEL THOMAS E. )
O’HARA, and WASTE MANAGEMENT OF )
ILLINOIS,
)
)
Defendants.
)

CIVIL NO. 09-603-GPM

MEMORANDUM AND ORDER
MURPHY, District Judge:
This mater is before the Court on the motion for taxation of costs on appeal brought by
Plaintiff American Bottom Conservancy (“American Bottom”) (Doc. 78).

In this action,

American Bottom challenges under the Administrative Procedure Act, 5 U.S.C. § 701 et seq., a
permit issued by Defendant United States Army Corps of Engineers (“the Corps”) to
Defendant Waste Management of Illinois (“Waste Management”) pursuant to Section 404 of the
Clean Water Act, 33 U.S.C. § 1344.1 On September 30, 2010, the Court granted summary judgment
in favor of the Corps and Waste Management, finding that American Bottom lacked standing to sue.

1.
Because Defendant Colonel Thomas E. O’Hara is sued in his official capacity as the
Commander of the Corps’ Mississippi Valley District, American Bottom’s claim against O’Hara is
deemed by the Court to be a claim against the Corps. See Monell v. Department of Soc. Servs. of
City of N.Y., 436 U.S. 658, 690 n.55 (1978) (noting that “official-capacity suits generally represent
only another way of pleading an action against an entity of which an officer is an agent[.]”).
Accordingly, the Court will refer to O’Hara and the Corps collectively as “the Corps” throughout
this Order.
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On appeal from the Court’s judgment, American Bottoms procured reversal of the judgment. In the
mandate of the United States Court of Appeals for the Seventh Circuit in the appeal, costs were taxed
against the Corps and Waste Management in the amount of $218.81 for reproduction of briefs.
American Bottom now requests that this Court tax additional costs on appeal against the Corps and
Waste Management in the amount of $486.50.
Pursuant to Rule 39 of the Federal Rules of Appellate Procedure, certain costs of an appeal
are taxable in a district court. The rule provides, in relevant part:
Costs on Appeal Taxable in the District Court. The following costs on appeal are
taxable in the district court for the benefit of the party entitled to costs under this rule:
(1) the preparation and transmission of the record;
(2) the reporter’s transcript, if needed to determine the appeal;
(3) premiums paid for a supersedeas bond or other bond to preserve rights pending
appeal; and
(4) the fee for filing the notice of appeal.
Fed. R. App. P. 39(e). In this instance American Bottom has furnished the Court with the
declaration of one of its attorneys, Elizabeth J. Hubertz, and invoices showing that American Bottom
incurred as costs on appeal the expenses of $455.00 for filing its notice of appeal and $31.50 for
obtaining a transcript of the hearing on summary judgment that resulted in the dismissal of this case.
These costs are properly taxable against the Corps and Waste Management, and therefore the Court
will tax costs against Defendants in the amount of $486.50.
To conclude, American Bottom’s motion for taxation of costs on appeal (Doc. 78)
is GRANTED and it is hereby ORDERED that, pursuant to Rule 39(e) of the Federal Rules of
Appellate Procedure, American Bottom is entitled to costs on appeal in the total amount of $486.50
for the cost of filing the notice of appeal in this case and the cost of the reporter’s transcript on
appeal. These costs are in addition to costs in the total amount of $218.81 previously taxed in the
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Seventh Circuit Court of Appeals and paid by Defendants. Upon the agreement of the parties,
American Bottom’s costs are apportioned evenly among the Defendants. Accordingly, the Clerk of
this Court is directed to issue execution against the Corps for $243.25 and against
Waste Management for $243.25.
IT IS SO ORDERED.
DATED: November 16, 2011

/s/ G. Patrick Murphy
G. PATRICK MURPHY
United States District Judge

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