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City of San Antonio, Texas, On Behalf of Itself and All Other Similarly Situated Texas Municipalities v. Hotels.com, L.P., et al.

Paid petition · United States Court of Appeals for the Fifth Circuit, No. 19-50701 · judgment May 11, 2020

Decided · May 27, 2021
Pre-decision estimate: 27% cert probability (95% interval 18%–40%)

Before the decision, about 6.6× the 4.1% base rate. The model weighted this up for counsel who has won certiorari before, a Fifth Circuit decision below, and a state or local-government petitioner, and down for a business respondent.

Question presented

Under Fed. R. App. P. 39(e), four categories of “costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule.” In a 1991 two-judge, unpublished disposition, the Fifth Circuit construed an outdated version of Rule 39(e) to hold that “district court[s] ha[ve] no discretion whether, when, to what extent, or to which party to award costs” under Rule 39(e), making a full award of costs “mandatory.” In re Sioux Ltd., Sec. Litig., No. 87-6167, 1991 WL 182578, at *1 (5th Cir. Mar. 4, 1991). Every other circuit confronting the question (both before and after Rule 39 (e)’s 1998 amendment) has held the opposite: “district court[s] ha[ve] broad discretion to deny costs to a successful appellee under Rule 39(e).” Republic Tobacco Co. v. N. Atl. Trading Co., 481 F.3d 442, 449 (7th Cir. 2007). Despite recognizing that “most other circuits” have adopted the “contrary position,” the panel below held it was bound by its earlier precedent; the full Fifth Circuit subsequently denied re hearing en banc (over the votes of six dissenting judges), entrenching an acknowledged circuit conflict. In so holding, the Fifth Circuit affirmed a $2 million cost award against San Antonio, despite the district court’s finding of “persuasive” reasons to deny or reduce that award. This case is thus an ideal vehicle for resolving a clear, intractable, and longstanding split over the proper meaning of Rule 39(e)—as it is routinely applied to the most significant portion of a cost award following a successful appeal. The question presented is: Whether, as the Fifth Circuit alone has held, district courts “lack[] discretion to deny or reduce” appellate costs deemed “taxable” in district court under Fed. R. App. P. 39(e).

Counsel of record

For petitioner
Daniel L. Geyser
Haynes and Boone, LLP

For respondent
David B. Salmons
Morgan, Lewis & Bockius LLP

Case

Conference history
Distributed for 2 conferences

Amicus briefs
2 merits
(2 supporting pet./neither)

Argument & decision

Argued April 21, 2021 — Daniel L. Geyser · David B. Salmons. Audio and transcript

Decided May 27, 2021. Opinion by Alito.

Proceedings

  1. Jun 28 2021
    JUDGMENT ISSUED.
  2. May 27 2021
    Adjudged to be AFFIRMED. Alito, J., delivered the opinion for a unanimous Court.
  3. Apr 21 2021
    Argued. For petitioner: Daniel L. Geyser, Dallas, Tex. For respondents: David B. Salmons, Washington, D. C.
  4. Apr 09 2021
    Reply of petitioner City of San Antonio, Texas, on behalf of itself and all other similarly situated Texas municipalities filed. (Distributed)
  5. Apr 05 2021
    Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument DENIED.
  6. Mar 30 2021
    CIRCULATED
  7. Mar 29 2021
    Motion of the Acting Solicitor General for leave to participate in oral argument as amicus curiae and for divided argument filed.
  8. Mar 26 2021
    Brief of respondents Expedia, Inc., Hotels.com, L.P., Hotwire, Inc., Orbitz, LLC, Trip Network, Inc., Internetwork Publishing Corp., Travelnow.com, Inc. filed. (Distributed)
  9. Mar 15 2021
    Record requested.
  10. Mar 15 2021
    The record from the U.S.C.A. 5th Circuit is electronic and located on Pacer.
  11. Mar 12 2021
    SET FOR ARGUMENT on Wednesday, April 21, 2021.
  12. Mar 03 2021
    Brief amicus curiae of United States filed.
  13. Mar 03 2021
    Brief amici curiae of National Association of Counties, National League of Cities, U.S. Conference of Mayors, International City/County Management Association, and International Municipal Lawyers Association filed.
  14. Feb 24 2021
    Brief of petitioner City of San Antonio, Texas, on behalf of itself and all other similarly situated Texas municipalities filed.
  15. Feb 24 2021
    Joint appendix filed. (Statement of costs filed)
  16. Feb 18 2021
    Motion for an extension of time to file the joint appendix and petitioner's brief on the merits filed.
  17. Feb 18 2021
    Motion to extend the time to file the joint appendix and petitioner's brief on the merits is granted and the time is extended to and including February 24, 2021.
  18. Jan 08 2021
    Petition GRANTED.
  19. Dec 16 2020
    DISTRIBUTED for Conference of 1/8/2021.
  20. Dec 16 2020
    Reply of petitioner City of San Antonio, Texas, on behalf of itself and all other similarly situated Texas municipalities filed. (Distributed)
  21. Dec 02 2020
    Brief of respondents Hotels.com L.P., et al. in opposition filed.
  22. Nov 02 2020
    Response Requested. (Due December 2, 2020)
  23. Oct 21 2020
    DISTRIBUTED for Conference of 11/6/2020.
  24. Sep 29 2020
    Waiver of right of respondents Expedia, Inc., et al. to respond filed.
  25. Sep 28 2020
    Waiver of right of respondents Site59.com L.L.C. and Travelocity.com L.P. (n/k/a TVL LP) to respond filed.
  26. Sep 28 2020
    Waiver of right of respondents Travelweb, LLC, et al. to respond filed.
  27. Sep 10 2020
    Petition for a writ of certiorari filed. (Response due October 14, 2020)