we will hear arguments st this morning in case two hundred and thirty three for san antonio versus hotels dot com mr geyser thank you mr chief justice in may it please the court rule thirty nine authorizes district court exercise discretion in denying or reducing taxable costs under rule thirty nine dollars and if a circus contrary position ignores the rules plain language makes nonsense of its structure invites a host of obvious practical problems  dramatically upset settle practice in every single jurisdiction nationwide including ironically in the fist circuit itself responded said now wisely conceded that rule thirty nine dollars t costs are discretionary the only question is which court has the power to exercise that discretion we say the district court because rule thirty nine expressly says that rule thirty nine ecologists are taxable in that district court that clause embodies a permissive term in making a textual assignment to the district court not the a e court and it does so against the explicit backdrop of provisions like section one hundred and twenty dollars that delegate textual discretion over the same overlapping costs to the district court is straightforward design pushes down collateral facts beyond issues to tribunal that is best equipped to take evidence make a record result factual disputes and address these new issues in the st instance now responded to say that rule thirty nine vests only the appellate court with discretion but there are only hook for that belief is rule thirty nine dollars a which is the rules only provision that provides any role for the appellate panel that rule by its express terms dictates only against whom costs are assessed and says nothing about what those caution be under the rules design the panel doesn't have access to the relevant information at the time of the subsection a determination the panel doesn't have a formal cost request it doesn't have any relevant evidence it doesn't have a record on costs because there is no record on cos and it doesn't know the opposing parties objection so the read uncertain caution be denied or read is a core cannot intelligently exercise discretion without access to the relevant information and the rule is specifically designed for the relevant information to come out after it will thirty nine a determination is made mr geyser there this is a matter that's dealt with in the local rules and perhaps my information is is dated but it seemed to me that if you practice before the court or on a regular basis you'd know what the rules and the customs were and if not you would ask the clerk and in or she would tell you and i think what they would tell you is one of two things st they say we deal with a problem up here you know h read rule thirty nine a and if there's a dispute i'll go ask the writing judge what he or she wants to do and if they're still going to be a fight we'll send it down to the district court or the clerk is going to tell you you go down to the district co standardize all those local practices which is far as i can tell haven't really been a problem because you say the court of appeals has no problem no authority over this and it has to go to the district court in the st instance is that right appellate court can exercise discretion when the cost request for those costs under the circuit on practice doesn't even arise at the apollo level they have no idea what those costs will be and in terms of local rules the federal rules of  you suggest to an imposed i think for something ends minor and scoffs which is a minor thing in ninety whatever percent of the cases i have i do think the different courts of appeals follow different practices and i'm not sure it's caused a real problem well in a canyon i think the court of appeal to generally follow the same practice of differing all the fishies down to the district court and it works well there is no reason that it is a court can't can't handle these collateral back down cost practically make that request i know my friends on the other side of suggested you should do this in your marriage briefing now of course rule twenty eight a specifies the required items in the merits brief as ten different items it doesn't say anything about costs and it doesn't make much sense to ask parties to raise these preemptive objections based on future predictions of what an opposing party might request hypothetically on remand if they when and if the panel assigns costs so the alternative then is raising it in a rehearing petition but this isn't really the proper subject of a rehearing petition so that's why my friends are really struggling is a very able lawyers and they haven't come up with any workable way to get relevant information to the appellate court makes more sense is send it down to the district court these are collateral issues they can deal with them they deal with them under section one hundred and twenty they deal with them under oath fifty four d they do a good job at it there's no need to create this complexity when the rule itself has a simple design that simply says when you're dealing with these four categories of costs that are that are likely among all the cost issues to generate back down the speech let's send it down to the district court to handle in the st instance an issue didn't seem to be  the circus i think it is a bit of an outlier especially to have a cost award of this magnitude which is why again what typically works best is a district court can handle you know quibbles about a little minor cost panel doesn't have to spend its time with that they typically address the merits of the case they say which party is the prevailing party that's what subsection a is all about and then they send it down to the district court to handle the rest and you are other than your case could you point to any other immediate clear again in this very case they said put in that request in the district court yet then he tell the district court you can exercise discretion if some of those costs are improper and it's really a system that doesn't work well but does work well under the so what the what the circuit would do is it would decide what the costs are but if there is a dispute for further to the district court and we would assume that that is the rule unless the circuit says in a particular case or in general that there's a different rule that's wrong with it well i think what's wrong with that justice briar is that when the circuit is making that subsection a determination they often have no clue what color that's my point you know i mean i get these things from cos all the time and we just normally follow the rule i'm saying you would normally just do it a says and decided here unless there is a dispute and then what would happen is just what i said if there's a dispute over for it as you p and apply knowing that if there's a dispute in general or in this specific case the court of appeals refers it to the district court for resolution ok same question rd time what's wrong with a try to give with it and then at that point that's when the party put in the request for these massive cos that's when the objections come out and a district court says oh no it turned out there might be a reason to deny or reduce cost but it does or it's role you need to do that at right our rule to be just what i said you'll do exactly what you want because that is the rule the st circuit where there is a dispute again you're not i think the rule makes it simpler and a the district courts are perfectly capable of handling these things the appellate court simply says this is the party that can put in the request for costs and then they can be done with it and focus back on the merits of appeals instead of dealing with collateral cost issues the district courts can handle that situation the district court would have discretion to make a different allocation what i'd say your honor is an internet rare for that to happen at all normally what the public or does is it decides in a mixed judgment like that either that neither party is entitled to costs or it chooses the party that really won more on the deal and then the district court can take into account how successful that party was in deciding to reduce the cost nothing prevents the appellate panel from saying while there were warning costs to the appellant the district court should take into account the degree of success on the appeal but i think the better reading of the rule is that the specific allocation itself is done by the body that just signed with figuring out the proper taxable cost for those designated items three dollars or four items and thirty of them to boost fairly straightforward the preparation of transmission of a record reporters district court had to approve a bond and you presumably knew how much the amount of bond why does it make sense that the district court review  that the moving party could have sought it doesn't know of the other side has injections to the bond or the rate attained and so there's really no reason to focus on it at that point the cost issue becomes right when the cost request is put in under the rules designed and under and in fact the pfister get some practice in the district court so i think at that point the district court of just as well suited as the appellate court to examine it back down the spirits and say what would i weigh the bond requirement could you have best position to know based on their own network and their own financial situation whether they are capable of obtaining alternative forms of security it's not really our job to ask what can we look at your finances in peek under the hood and see if there was  something better you could have pursued they came to us with a bond request and it would as as we plaintiff on behalf of a class that he had a pretty fair obligation to make sure the judgment is protected for the class and the other side offered to post a bond and that was their one and only suggestion thank you justice sotomayor how soon did you know how much the bond was when it was sought from to be placed at the district  you knew what they were you had an opportunity if you chose to tell the circuit court we know the cost is high we don't believe it's just do you want to hear it or do you want to let the you raise that issue at all or that it will just say let the district if you did what i just said which is what happens in some other circuits what do you believe th because they could say it's not right yet the other side has an even asked for their bond premium because they're supposed to do that in the district court but i'm also not sure when we would have done that we could have done it in our marriage briefing but our ability to done it when the bill of costs was put in to the judgment is rendered you have fourteen days the other side puts in the bill of costs st for the three dollars or four items that it sought and at that point you could have said we're ok with then at that time the bill cost for the th circuit doesn't even have a listing for the barn so we would have to inject saying although this isn't on the of the other side's request if they eventually ask for this in the district court where they're supposed to know this would be our objection to that hypothetical one last quick one i understand the i think i understand what you're saying which is the way things work the circuit court only looks  those two or three items and tells you to go to the district court for the others and if you go to the district court and we see how they have no discretion you believe you have no way to go back to the circuit court to look at that decision is that correct  i think that is correct well in fact it is correct because you raise your objections and the th circuit said the district court couldn't look at it but it didn't look at your objection siva so it's really a to process problem you're talking usually the appellant pays if a judgment is affirmed but for whatever reason we want to do something otherwise is that right that is right so that sounds like a lot of discretion so then it was seen and i mean how many courts can have discretion isn't that just basically say in the court of appeals has the principal discretion i think they do but in a limited area it's their discretion to decide against whom costs are assessed it does not say for example and thirty nine dollars ve that the costs are tax in the district court must the appellate court says otherwise it says full stop the district court is responsible for these costs well maybe that the thirty nine dollars is talking about something different so if you read it against correct and necessarily incurred so that's the kind of thing where you come in for a you say i paid a one thousand dollars for the transcript and somebody else said says no it was two thousand dollars or something like that so why isn't the what the district court has to do is basically just figure out whether the costs are correct and necessarily  incurred your honor i think because it would be at odds with the rule structure and design the appellate court then would have to decide whether to deny or reduce costs without knowing what they are say the premium was one hundred and fifty percent of the market rate no one knows that until the requests just come in for the cost and then at that point i'm not sure if the district court then is saying that's an improper cost or whether the public court should exercise discretion in reducing it even though that is the cost in fact paid so the public court simply is not in a position to intelligently exercise discretion without having the relevant information and i think everyone agrees that information comes out at the district court thank you mr guy's justice gorsuch mr guys  struggling with the due process argument as or what what what what would have prohibited your clients from raising the question about the book costs before the court of appeals of some point your honor i think we'd have to come up with a vehicle for doing that and i would have thought maybe your brief or a supplemental filing which happens in a lot of courts of appeals or maybe your petition for a hearing i think you filed one for clear when the rehearing petition was filed in this case there still wasn't a request for bond cos in fact the only requests were when this is called to you because in the rule you know it's coming or you're on notice that it's coming it's going to be taxable against you absence  why should we be concerned your honor i think i think just in terms of this invasion ing the way the process most sensibly works is asking the opposing party to file an objection to something that hasn't yet been arranged yet so it's predicting i think this is notice but if that's not sufficient notice i guess i just wonder why i've got your honor because it's it's not the rule itself that that makes the that activates the right to the cost the party entitled to costs under the rule has to file a verified bill of cause they have to formally seek them if they don't seek them they get no cost and if they didn't encourage the cost they get no cost and if the cost that you knew this bomb was going to be know we presumably knew that the other side will likely seek the cost but until they actually seek it maybe maybe they decide not to maybe they're feeling charitable maybe they reduce their requests knowing what about maybe arteries that though why wouldn't you raise it if you're if you're if you're genuinely concerned about it you know it's two million dollars in your car is going to take the united states supreme court over it why wouldn't it incumbent upon you to to to to braise that issue at the court of appeals which has the case before it four times because your own is under the rule itself the district court is the appropriate tribe you know where we can make that our objections after the other side is actually put in the formal request for costs as opposed to hypothetically objecting to district court has authority with respect to costs a dispute is what the district court can do and i guess the question is looking at the structure of the two tiered structure of the us with thirty nine a thirty nine easy why isn't the better reading that the district court can determine the amount of the particular costs listed in thirty nine and disputes over whether a particular amount  was correct or not as justice kagan points out but the district court does not have the authority over whether to award the costs at all or to reallocate the costs from what the appeals court has said wise and that the better reading district court costs but that allocation whether it's one hundred percent or some separate allocation and then defines what the circuit clerk does and then what the district clerk does with the particular costs and there may be disputes over the amounts but they can't the district court can to clerk or judge with this again well i just want to maybe say one thing on that to justice alito i'm not sure you specifically answered his question when the allocations done by the court of appeals how can the d c district court reallocate and you said that doesn't really happen a lot well i did albums in but i don't think that's necessarily inconsistent with our position because someone will need to exercise discretion and looking at each individual element of cost and saying should this be denied or and then you can apply the percentage reduction to whatever that became known i guess the point is when the court of appeals is doing it's really not looking at the amount of the cost so maybe this is a flaw in the system is just looking at who won and who lost and question to you i mean it's the district courts have discretion to decide whether the costs are correct and necessarily incurred in the case is that right that is right so why isn't this just a dispute about how broad the district court discretion  decide whether a particular cost here the bond amounts were necessarily incurred because as i gather you're saying here well these weren't necessarily incurred it wasn't necessary to get something that was this expensive they could have done something different is that another way dispute i think it is a potential way to frame the speed and i think it shows that someone needs to have some then when they see a cough that's been incurred even if they have a receipt for it but that in the circumstances of the case should be reduced cost was necessarily incurred i think that is correct and i think the only way around that is to manufacture workarounds to the federal rules as opposed to simply following a very clear design where does the courts are perfectly capable of doing be saying sayings about you know the district courts in a position to know about the litigation strategy or the conduct or litigation or the strength of the arguments that i misunderstand that no you didn't discourage traditionally look at all sorts of factors including well that  is a pretty destitute will will cost or drive them you know into poverty you know all sorts of different factors that might not be apparent during during the marriage briefing when the panel is simply trying to decide the merits of the appeal which is what the public courts traditionally do band with digging into these questions and creating a record and sometimes hearing witnesses and resolving fact bound fact intensive issues but the way the rule itself is designed and the way that it's applied in all the other circuits is outside the fisher it makes better sense it pushes the question down to the district court judges of the decision fiords or push down to the district court just as other cost questions are pushed down to the district court to resolve these cost that may be taxed on appeal and assigned the appellate court alone to decide the party's entitlement to those costs less than that court orders otherwise thirty nine dollars a direct all those costs quoted are tax close quote against the losing while empowering the recently reversed district court to decide the fairness of boarding all some or none of those appellate costs apart from the tax longstanding precedent before rule thirty nine refutes that position this history confirms two things st a general appellate award of costs means all covered costs and nd a district court assigned to tax appellate costs has no power to revisit the equities or award less than full cost this case shows the problems with petitioners approach thanks to the process required by federal rule of civil procedure sixty two dollars it is undisputed the appeal bonds here reflected result market rates the parties negotiated over their terms and the district court approved them the bomb amounts were increased twice at the teachers insistence permitting the recently reversed district court to entertain petitioners marilyn's argument that it is unfair for a class representative to pay full costs will cause nothing but mischief and wasteful win and then they end with the footnotes saying oh by the way if we lose you know we think we're going to pay too much on the bond and that's asking a lot well it is not the only place they have to do it i'm just pointing out your honor where what would refer the court to the abuse case from the th circuit which is one where in a petition for rehearing the party raised issues related to the appeal bond costs and asked for relief and the court of appeal in that case considered issues as to why they should not the other party should not be entitled to their costs and the place to do it is in the court of appeals and that's what the th circuit holes well i wonder if a dispute between the two of you is to islam is not so fundamental  your friend on the other side seems to be saying you have to be down in the district court and and your position i understand is well known you can certainly refer it to the district court because they may be better at figuring out what the facts are but you just want to say you don't have to well as in fashion i think the rule makes clear that the place you do begin if you want relief from the mineral presumption favoring a full order coffee is with the court of appeals and of course the court of appeals and has discretion to either grant rel here you could have things right for sandbag so how do you get around that concern well i really don't think there is one your honor let's take for example the category of supersedeas bond costs that's the one category can get large depending on the nature of the judgment and how much time has passed since it's reversed but the federal rule already has an elaborate process to ensure that those costs are reasonable before they incurred in that federal rule of civil procedure sixty two as this case illustrates what rule sixty two requires is that the parties either agree to the bond terms or if the point of the whole the judgment of  the district courts fruit neiges and then approves the bond terms and here they were agreed to and all of the details about them were exchanged copies of the bonds were exchanged by e mail we put all this in the joint appendix there's no surprise here that these amounts were large they were large because the judgment was large and because it took a long time to get the judgment reversed but these were blessed by the district court in the front and of course it's fair and appropriate for the party that incurred those costs to get rid of an invalid judgment is entitle to them there's not a need for a nd round of discretion by the district court has already approved the bond to nd guess the entitlement of those cost into whether or not they are fair if placed to exercise discretion was under rule sixty two but what you heard from a number of my colleagues is as soon as a court of appeals judge you've made make a job they made adjustments to cost precisely because  is there to see if it is the court decides the merits and that the way the rule works under thirty nine dollars a there are plenty of opportunities to raise that in a court of appeal and it's simply not true that a circuit somehow prohibits parties from raising those issues winning side is going to ask for until the case is sent back and when he st sees it is in the district court after the case is sent back so obviously he didn't raise it in the court of appeals he didn't know how much you ask for that's not in question and and if i'm right about that impression wouldn't a simple rule be if you are in the court of appeals writing the rule i would say we follow the rule here that's in a tax costs accordingly taxed and the part to the rule says yes there is a disagreement about the appropriateness of the amount the amount sought in these categories the district court will resolve it and for adjusted or don't do it because this is a special situation but he can't do that he doesn't know it's not this case other cases the certain time same question and i'm not being clear should pay nine dollars days to pay less those are the kind of arguments a gets raised and if the court of appeal wants to we can defer it to the district court we stifle cases where that happens all the time but the place to raise those equitable entitlement concerns is with the court of appeals term taxable are taxable to mean the same thing and thirty nine dollars t that means in this court's rule forty three dollars which says that the cost of the transcripts of record shall be taxable in the court below that the same language going always back to the eight dollars is in this court's rule which has been the model for circuit courts and then for rule thirty nine that we see all these cases we cite in our in our brief where is a matter of history it's clear that the terms are taxable is just telling you where the costs are attached but it is not providing discretion to revisit the question of entitlement it's the court that decides the merits of the appeal and then decides whether a party is entitled to their cost what's left for the lower court is to decide how to cost been properly documented and do they fit within the fine category and that's helpful to me my other question is can you just walk me through the procedure that you think petition for rehearing so i think that what's left is objections to the bill of costs so walk me through the procedure that you think asked particularly with respect to an issue like costs filed with the circuit clerk of the party the losing party raises broader applicable concerns about all categories of costs including those that would be taxed by the district court under thirty nine the of the nd circuit discusses its process is that you are basically saying the only practical time to raise this is at the point that a winning party files a bill of costs with the court of appeals that the losing party has an agree and here you knew what the cost the other side i don't try to cut to the chase ok here the other side knew what the costs were and if it had any defense to those costs and a quotable or those relating to it being necessary or unnecessary it should have raised them to the court of appeals that's your argument correct yes rather now you are not taking away from the district court your position that if you had gone to a sister corporation for this bond and paid ten times the market value the district court still had the power to say that was unnecessary correct well i think it's i think it likely would although i would point out your honor that the place where that gets result is under rule sixty two before the costs are incurred it happens that way but let's talk about a different scenario ok one in which  expects the record on appeal to have been and the transcripts to have been done ad x some out whatever it is ok but all of a sudden the bill of class comes in and it's the only time they see that it wasn't done at market rates that it was done in some weird process ok record was put together in some weird process and it's ten times the normal cost what happens in that unbeknownst to them that the cost turned out to be x astronomical and they simply can't afford it who do they take that equitable argument to if they were unaware of how astronomical the costs would be not this case not your case some posing a hypothetical ok on the record for train on the record reproduction how can they get back to th sitter that decision mandate has issued the district court doesn't have discretion how do they ever get to put that before somebody you are  the place where that is the proof really raises in the same place as before as you know if you don't know it if you don't know it counsel you don't know it until you see it bond situation you know it ahead of time you know what the costs are i'm talking about preparing the record or doing something else and all of a sudden you see something and realize it's past my ability to afford number one it will bankrupt me number two and number three kagan mr salmon let's suppose that on one level of discretion i agree with you which is the question about who can change these default rules of thirty nine a that only the court of appeals can change the default rules only the court of appeals for example can say you know the appellate doesn't get all its costs it only gets eighty percent of its costs but then there seems as though there's a nd level of discretion and this is what you were talking with justice alito about and he said you know easy thirty nine east says taxable that suggests some kind of discretion what is that discretion that's taking place in the district court and you said the district court is doing two things the district court is deciding whether the costs were actually incurred you know properly documented where your receipts all that and is making sure that the costs that are being submitted for within the defined categories that i get all that right is room ok so but then if you turn to nine hundred and twenty four  that the district court really has two functions and and there is discretion in these functions one is to decide whether the costs are correct and the other is to decide whether they've been necessarily incurred and i take that language to be kind of you're giving us the spill and it's true you paid it but you didn't have to pay it there was no reason for you to pay it and it's just not fair to impose that bill on the other party when it's coming out of nowhere and you didn't need to pay it wouldn't you say that the district court has discretion to do something about that but i think it certainly does your honor with certain categories of cause but take for example thirty nine ve to specifically says that the reporter's transcript does or does cause is needed to determine the appeal of the point i would make with regard to supersede his bond costs is that effect really that determination should have already been made under rule sixty two before the costs are incurred that's the whole reason for this rule sixty two process is this one category they can get quite large before those costs are incurred the parties get together and they either agree upon those long terms or the district court overruled any objections in determines that they are appropriate at that point there really should not be much if any of an issue with regard to whether those costs were needed and there's no hope of exhaustion requirement but two there seems to suggest with s bonds so st the district court has to under rule sixty two may make a ruling approving your bond proposal and presumably there the other side can make a directions they want as to  equitable and equitable nature of the bond that itself can be part of the appeal to then we have the appeal and they could maybe they don't want a raise in their in their brief often party you do are you if i lose then  least give me this but let's say we excuse them from that and then they have a rehearing petition where they have lost they can raise their knowing now that there potentially on the hook then they get the bill it costs that they can raise it there for the court of the court of appeals could either make some judgment then or as i understand it some of courts of appeals will refer the matter to the district court expressly delegating their discretion to deal with the problem and then i would add just one dollar small additional point which is that the rules are structured if the party that has the judgment below is concerned about the potential cost related to an appeal bond in its course is on notice that it may have to bear those costs so it has skin in the game too it can agree to either reduce bonder to no bond to avoid those costs so it is there is no surprise is is really not here and this court cautioned correct yes ok and i think maybe i'm wrong about this but i think the concern might be that when the court of appeals is making the allocation it's not aware of how large the cost might be and if it knew it might make a different allocation i don't know if that's a concern residence but if that is the concern what's your response well my response your honor is dead we're dealing with very defined categories of cost the costs here are limited by rule thirty nine  terms and to the extent you want to bring it to the attention of the court of appeals hey you should think about the size of the cost of this just isn't printing costs and the usual kind of costs that are in the thousands not in the s of thousands hundreds of whether the district court has the discretion to reduce appellate costs but i'm wondering and you know it seems to me like this came out potentially in your interchange with justice kagan you said that the super city is and costs were you treated them is a bit exceptional because they had already been approved by the district court under the federal as of civil procedure so i gather that you're not really denying that the district court threw nine hundred and twenty four has some authority to reduce it reviews the cost for excessive copying etc but just that in this particular case of the super city as and it doesn't have the authority to reduce it because the time for that particular cost has come and gone so you see what i'm saying that this is maybe the district court may have authority pursuant to nine hundred and twenty four to adjust costs because it judges that they were not necessarily incurred but you're just saying that supercilious costs are different because they were already been judged to be unnecessarily incurred and that kinds of equitable considerations that can come into account one is the challenge that listen these costs are just too high because you could've gotten you know you could've done your copying or gotten the bond rates more cheaply than you did and then the other kind of concern is the one that justice sotomayor was raising like a party's inability to pay for example and you're saying that perhaps the kinds of concerns about a party's ability to pay should be directed at the court of appeal but equitable considerations that go to the necessity of the cost you agree are properly decided in the district court i think generally they are as part of that the district court's requirement to ensure their only proper costs are awarded and that  circuits rule and we and we agree with that my only point was that i think in practice these these issues do not come up very often but they're back there exceedingly rare and if you look at the arguments that are being made here the sort of  arguments being made here they have nothing to do with whether these are appropriate categories of cost at all or whether they were in some way in twenty minutes around mr salmond thank you your honor the drafters rule thirty nine ri concluded that superseded bond premiums are an ordinary and appropriate category of appellate costs equally entitled to the venerable presumption favor full recovery favoring full recovery as other specified costs rule sixty two dollars already provides a process ensures the reasonableness of a bond terms adequate notice to all parties and ample discretion to the district court to review and approve on terms before these costs are incurred plaintiffs are concerned about potentially bearing these costs can always agree to reduce or forego a bond given this framework there is no reason to distort the clear terms and history of rule thirty nine to provide the district court another round of discretion to ignore the appellate court's entitlement determination and decide for complexity into rule thirty nine simple unworkable design why would the rule delegate these cost to the district court trays after the mandate has issued if it really wanted parties to raise these issues before the appellate panel and they took the alternatives m proposed or simply poor work around it is indeed asking a lot to preemptively brief these hypothetical issues in the parties may it's breaks rule twenty doesn't require that rehearing is certainly an odd fit it's rehearing an issue that no one has ever decided objections to the bill of cos when the bill of costs are limited to non rule thirty nine ve costs really are again ill suited for deciding these issues my friend cited the nd circuit's more case that actually proves our point that was a dispute over rule thirty nine b costs not rule thirty nine ve cost and there is a compressed time table under thirty nine dollars b for objecting to a bill of costs and there's no obvious mechanism for taking evidence hearing witnesses or developing a record which regardless of whether that's necessary in this case or not i think it probably is certainly will be necessary in certain cases if a cost is improper or unfair there's simply no obvious way to get back to the circuit after the mandate is issued without engaging in burden some motions to withdraw the mandate which are exceedingly rare and are generally a waste of time when district courts can resolve these disputes perfectly well in the st instance there's simply no reason to shoe friends reading there's really no clear administer bowline between what a proper cost says and what it discretionary reduction to a cost request would be there's no reason to invite disputes about which court should have to decide those issues and both parties and the appellate courts to the task of wasting their time and resources briefing these issues when the role itself actually signs all of these disputes to the district court justice thomas asked about sandbagging my friend really had no answer rule sixty two doesn't address whether the cost as well as an appropriate it doesn't apply to this type of reveal and answer proves far too much it would say that no bond cautioned ever be disallowed for any reason because in fact the court except in the bond but approving a bond is simply not the same question as whether there is an alternative form of security that would be appropriate for securing a judgment the final point i'll make is that taxable does mean capable of being taxed rule thirty nine dollars he has no compulsory language it doesn't say that the district court must tax the these costs even though the rule uses that directive term us four dollars times in the neighboring sub