636 F2d 942 Gates v. Collier

636 F.2d 942

Nazareth GATES et al., Plaintiffs-Appellees,
v.
John COLLIER, Superintendent of the Mississippi State
Penitentiary, et al., Defendants-Appellants.

No. 79-1844.

United States Court of Appeals,
Fifth Circuit.

Jan. 7, 1981.
Rehearing En Banc Denied March 26, 1981.
See 641 F.2d 403.

P. Roger Googe, Jr., Peter M. Stockett, Jr., Asst. Attys. Gen., Jackson, Miss., for defendants-appellants.

Carmack M. Blackmon, Asst. Atty. Gen., Dept. of Justice, Baton Rouge, La., for amicus curiae State of Louisiana.

Lawyers Committee for Civil Rights Under Law, Frank R. Parker, Jackson, Miss., for Gates et al.

Stephen P. Berzon, San Francisco, Cal., for amicus curiae.

Appeal from the United States District Court for the Northern District of Mississippi.

ON APPELLEES' PETITION FOR REHEARING BEFORE THE PANEL

Before BROWN, HILL and RANDALL, Circuit Judges.

PER CURIAM:

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1

The majority, for reasons set forth in Judge Hill's dissent,1 is now convinced that it was in error in distinguishing between so-called out of pocket costs, on the one hand, and attorney's fees on the other.2

2

The result is that, while the Court remains divided on whether Carpa has to be overruled3 to permit interest on attorneys fees all are in agreement that out of pocket costs and attorneys' fees, now including all court costs, are to be treated alike with respect to interest.

3

Appellees' Petition for Rehearing by the panel is accordingly granted.

1

"Although I am of the opinion that Carpa (Carpa, Inc. v. Ward Foods, Inc., 567 F.2d 1316 (5th Cir.)) prevents the awarding of interest on out-of-pocket expenses, I must dissent from the majority's holding disallowing interest on those costs." 616 F.2d 1268, 1280 (5th Cir. 1980)

"The question whether interest should be awarded on out-of-pocket costs is disposed of by the majority all too easily.... 'firmly established in our jurisprudence' is the principle that such costs do not bear interest.... simply do not support that statement. There is nothing in any of those opinions to the effect that some costs are interest bearing while others are not." 616 F.2d at 1282.

... "There is nothing to suggest that Congress considered attorneys' fees more important or less important than other litigation expenses.... there is more reason to allow interest on out-of-pocket expenses than on attorneys' fees." 616 F.2d at 1282.

... "Were I not of the opinion that Carpa prevents us from allowing interest on any part of costs, I would not hesitate to hold that these plaintiffs should have interest on their out-of-pocket costs." 616 F.2d at 1282-83.

... "As noted above, most federal courts have found no barrier to awarding interest on costs." 616 F.2d at 1283.

2

See p. 1279 and n.17

3

This issue is the subject of appellants' Petition for Rehearing En Banc now pending before the full Court