The Honorable Dean Whipple, United States District Judge for the Western

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District of Missouri.

United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 97-2984

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Ronald B. Paul, *

*

Appellant, *

* Appeal from the United States

v. * District Court for the

* Western District of Missouri.

Farmland Industries, Inc., *

* [UNPUBLISHED]

Appellee. *

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 Submitted: April 6, 1998

 Filed: April 9, 1998

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Before FAGG, BEAM, and HANSEN, Circuit Judges.

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PER CURIAM.

Ronald B. Paul brought an unsuccessful employment action against Farmland

Industries, Inc. (Farmland). Several months after this court affirmed the judgment, see

Paul v. Farmland Indus. Inc., 37 F.3d 1274, 1275 (8th Cir. 1994), cert. denied, 514

U.S. 1017 (1995), Farmland filed a supplemental bill of costs under Federal Rule of

Appellate Procedure 39(e) for court reporter fees incurred in obtaining a transcript for

the appeal. The district court awarded these costs, rejecting Paul&s argument that

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Farmland&s request was untimely under Rule 39(d). Paul appeals, and we affirm.
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Rule 39(a) allows costs to be taxed against the appellant if the judgment is

affirmed. Subdivision (c) allows the court of appeals to fix by local rule the maximum

rate for “the cost of printing or otherwise producing necessary copies of briefs,

appendices, and copies of records.” Subdivision (d) provides in part, “A party who

desires such costs to be taxed shall state them in an itemized and verified bill of costs”

filed with the clerk “within 14 days after the entry of judgment.” Subdivision (e) states

in part, “Costs incurred in the preparation and transmission of the record, [and] the cost

of the reporter&s transcript, if necessary for the determination of the appeal, . . . shall

be taxed in the district court as costs of the appeal in favor of the party entitled to costs

under this rule.” 

We believe the district court correctly joined other courts in finding the phrase

“such costs” in subdivision (d) refers to the costs listed in subdivision (c). See

McKelvy v. Metal Container Corp., 125 F.R.D. 179, 183 (M.D. Fla. 1989) (Rule 39(d)

governs procedure by which costs are requested from court of appeals; reference to

“such costs” implies those parts of rule preceding subdivision (d)); see also McDonald

v. McCarthy, 966 F.2d 112, 114-15 (3d Cir. 1992) (stating in dictum that reading Rule

39 in its entirety reveals time limits in Rule 39(d) apply to costs of briefs, appendices,

and copies of records allowable under Rule 39(c), and that Rule 39(d)&s time limit

should not be read into Rule 39(e)); Sudouest Import Sales Corp. v. Union Carbide

Corp., 102 F.R.D. 264, 264-65 (D. P.R. 1984) (stating in dictum that Rule 39(e) says

nothing about time limit). We also believe the district court correctly reasoned that

subdivisions (c) and (e) refer to different types of costs that are to be requested in

different courts. See Waterman S.S. Corp. v. Gay Cottons, 419 F.2d 372, 373 (9th Cir.

1969) (cost of reporter&s transcript for appeal is taxable in district court); 16A Charles

Alan Wright, Arthur R. Miller & Edward H. Cooper, Federal Practice and Procedure

§ 3985.1, at 672-73 (2d ed. 1996) (costs listed in Rule 39(e) are taxable only in the

district court and “prevailing party should make a separate application to the district

court after the mandate has been received from the court of appeals”). Furthermore,
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we construe subdivision (e)&s language “costs under this rule” to refer to subdivision

(a)&s provisions as to whom costs are allowed.

For these reasons we agree with the district court that the fourteen-day time limit

of subdivision (d) does not apply to costs taxed in the district court under subdivision

(e), and we see no abuse of discretion in the district court&s determination that the

timing of Farmland&s request was reasonable. Accordingly, we affirm.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.