United States v. Dundy

No. 743
Decided Circuit Court of Appeals, Eighth Circuit
Disposition
reversed and remanded
in part scope · unanimous
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Court
Circuit Court of the United States for the District of Nebraska
Decided
Judge
CALDWELL, Circuit Judge
Posture
Judgment for plaintiff (clerk) in amount of $2,178.76
Plaintiff in Error (1)
United States
A. J. Sawyer, U. S. Atty.
v.
Defendant in Errors (2)
Elmer S. Dundy, Jr.
Charles H. Marple

Overview

The judgment of the circuit court is reversed, and the cause remanded, without the allowance of costs to either party in this court, with directions to render judgment for the plaintiff in the action for the sum of $2,015.41.

Case summary

This case involves an appeal by the United States from a judgment awarding fees to Elmer S. Dundy, Jr., clerk of the United States district court for Nebraska, for services performed. The treasury department had disallowed certain fees, but the circuit court entered judgment for Dundy. The Circuit Court of Appeals reviewed multiple assignments of error regarding specific fee allowances. The court held that: (1) no law authorizes fees for swearing juries; (2) clerk cannot charge for copies of indictments without court order (except in capital cases); (3) clerk is entitled to fees for duplicate copies of payment orders but not for affixing seals to certificates; (4) United States is not liable for clerk services performed for criminal defendants; (5) clerk is entitled to fees for two copies of criminal sentences; and (6) clerk is entitled to fees for subpoena copies when required by court rule. The court reversed in part and remanded with directions to enter judgment for a reduced amount.

Abstract

The United States appealed a judgment awarding fees to a district court clerk for various services, which the treasury department had disallowed. The appellate court reviewed specific fee allowances, ruling that no fees were authorized for swearing juries, copies of indictments without court order (except capital cases), affixing seals, or services to criminal defendants, while allowing fees for duplicate payment orders, two copies of criminal sentences, and required subpoena copies. The judgment was reversed in part and remanded for entry of a reduced amount.

Opinion of the court

Majority
opinion
CALDWELL, Circuit Judgejoined by SANBORN, THAYER
  • No fee authorization for swearing juries
  • Court order required for indictment copies except in capital cases
  • Fees allowed for duplicate order copies but not seal affixing
  • Government not liable for clerk services to defendants
  • Proper practice requires two sentence copies
  • Court rule creates entitlement for subpoena copy fees

Jurisdiction

not challenged
Subject matter
Federal question involving fees of a United States district court clerk
Jurisdictional facts
  • Action brought by clerk to recover fees disallowed by treasury department
  • Appeal from Circuit Court of the United States for the District of Nebraska

Procedural posture

Posture at trial
Judgment for plaintiff (clerk) in amount of $2,178.76
Posture on appeal
Direct appeal by United States via writ of error
Preserved issues
  • Fees for swearing juries
  • Fees for copies of indictments
  • Fees for duplicate copies of orders
  • Fees for services rendered to defendant
  • Fees for copies of sentences
  • Fees for subpoena copies

Legal categories

Business

Case record

Full case name
UNITED STATES v. DUNDY
Docket number
No. 743
Court
Circuit Court of Appeals, Eighth Circuit
Trial court
Circuit Court of the United States for the District of Nebraska
Decided
Opinion author
CALDWELL, Circuit Judge
Opinion type
published
Precedential status
precedential
Judges on panel
CALDWELLSANBORNTHAYER

Issues & holdings

7
Issues raised
4
reversed
3
affirmed
6
Holdings
Standard of review

de novo

Disposition rationale

No law authorizes clerk to charge fee for swearing juries

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Clerk cannot furnish copies on own motion; requires court order except in capital cases

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Clerk entitled to fees for making duplicate copies

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Clerk not entitled to charge fee for affixing seal to certificates

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

United States not liable to clerk for services performed for defendant

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Proper practice requires two copies; clerk entitled to charge for both

Preservation

Issue preserved for review

Standard of review

de novo

Disposition rationale

Clerk entitled to compensation when court rule requires copies with certificate/seal

Preservation

Issue preserved for review

Holdings of the court

Fees for swearing juries
Clerk not entitled to fees for swearing juries
No law authorizes such fees
unanimousbinding precedent
Fees for copies of indictments
Clerk not entitled to fees for copies of indictments or affixing seal/certificate without court order, except in capital cases
Clerk cannot furnish copies on own motion; requires court order based on U.S. v. Van Duzee precedent
unanimousbinding precedent
Fees for duplicate copies of orders
Clerk entitled to fees for making duplicate copies of orders for payment of witnesses/jurors, but not for affixing seal to certificates
Supported by Van Duzee v. U.S. and U.S. v. Van Duzee precedents
unanimousbinding precedent
Fees for services to defendant
United States not liable to clerk for services performed for defendant in criminal case
No statutory authority for government to pay clerk for services rendered to criminal defendant
unanimousbinding precedent
Fees for copies of sentences
Clerk entitled to fees for making two copies of every sentence in criminal case
Proper practice requires two copies for marshal's use
unanimousbinding precedent
Fees for subpoena copies
Clerk entitled to fees for making copies of subpoenas with certificate/seal when required by court rule
Court rule creates entitlement to compensation
unanimousbinding precedent

Error analysis

  • Circuit court allowed fees for swearing juries — procedural · error foundError resulted in $28.60 overpayment · not harmless
  • Circuit court allowed fees for copies of indictments without court order — procedural · error foundError resulted in $47.25 overpayment · not harmless
  • Circuit court allowed fees for affixing seal to certificates of orders — procedural · error foundnot harmless
  • Circuit court allowed fees for services performed for criminal defendant — procedural · error foundnot harmless

Standards of review

  • Interpretation of fee statutes and clerk authority — de novo Legal questions regarding statutory authorization for clerk fees reviewed de novo

Timeline

appeal eventcited in opinion

Circuit Court of Appeals issues opinion reversing in part and remanding with directions

Outcome: Reversed and remanded with directions to enter judgment for $2,015.41

Final appellate decision establishing rules for clerk fee allowances

All fee allowance issues
CALDWELL, Circuit Judge · SANBORN, Circuit Judge · THAYER, Circuit Judge appellate court

Facts & evidence

Key facts

4 facts
  1. Elmer S. Dundy, Jr. served as clerk of the United States district court for the district of Nebraska
  2. He sought to recover fees for services performed that were disallowed by treasury department accounting officers
  3. The circuit court entered judgment for Dundy in the amount of $2,178.76
  4. The United States appealed, challenging specific fee allowances

Procedural history

3 steps
  1. Dundy brought action against United States to recover disallowed fees
  2. Circuit court entered judgment for Dundy
  3. United States appealed via writ of error

Evidence in the record

Documentary
  • Account of disallowed items returned by treasury department with reasons indorsed thereon
  • Exhibit to complaint showing fee items and disallowance reasons

Authorities

Cited authorities (3)

U. S. v. Van Duzee, 140 U. S. 169
followedquotedprecedent
Power of court to order copy of indictment furnished at government expense
at 140 U. S. 173
Van Duzee v. U. S., 59 Fed. 440
followedprecedent
Fees for duplicate copies of orders but not for affixing seal
U. S. v. Jones, 147 U. S. 672
followedprecedent
Fees for duplicate copies of orders but not for affixing seal

Statutes

  • Fee statutes for United States district court clerks

Standards & doctrines

  • De novo review of legal questions
  • Precedent from U.S. Supreme Court on clerk fees

Legal principles applied

  • No fee without statutory authorization
  • Clerk cannot act on own motion to charge government
  • Government not liable for services to criminal defendants
Index terms71
Summary terms
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Legal concepts
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Legal procedures
Legal remedies
Legal evidence
Legal arguments
Legal defenses
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Judges
Attorneys
Procedural terms
Entities and documentation
Legal actions
Action type
reversed and remanded
Target
circuit court judgment
Appealed from
Circuit Court of the United States for the District of Nebraska
Context
Judgment reversed and cause remanded with directions to render judgment for reduced amount
Scope
in part
Further instructions
Render judgment for plaintiff for $2,015.41
Disposition vote
unanimous
Search facets
Parties
Judges
CaldwellSanbornThayer
Courts
Statutes cited