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In re Grand Jury Subpoena Duces Tecum

October 21, 1985


Objection by the United States to a bill of costs submitted by a criminal defendant after his successful appeal, 767 F.2d 26, from an order of the District Court for the Southern District of New York, David N. Edelstein, Judge, see 605 F. Supp. 839, refusing to quash a grand jury subpoena served upon his attorney. Objection sustained.

Author: Friendly

Before: FEINBERG, Chief Judge, FRIENDLY and NEWMAN, Circuit Judges.

FRIENDLY, Circuit Judge:

This is a minor sequel to our decision in Payden v. United States, 767 F.2d 26 (2 Cir. 1985), familiarity with which is assumed. As there recounted, Payden was the subject of an indictment charging him with violations of the federal narcotics laws; a superseding indictment added a count charging him with engaging in a continuing criminal narcotics enterprise in violation of 21 U.S.C. § 848 and sought forfeiture of "all profits and proceeds of profits obtained" by him from the operation of the enterprise. The district court issued a trial subpoena to Robert M. Simels, Payden's attorney, requiring him to produce all papers relating to payments by or on behalf of Payden. After events recounted in our opinion, 767 F.2d at 28, Simels received a grand jury subpoena requiring him to produce the same materials, and the trial subpoena was withdrawn. Payden moved in the district court under F.R. Cr. P. 17(b) to quash the grand jury subpoena. The motion was denied, 605 F. Supp. 839 (S.D.N.Y. 1985). Payden appealed and we reversed, holding that issuance of the grand jury subpoena after indictment was an abuse of the grand jury process. Payden then submitted a bill of costs of $2,399.88 to which the Government filed timely objection on the basis of sovereign immunity.


The Government's immunity from costs was of long standing. Blackstone recites:

The king (and any person suing to his use) shall neither pay nor receive costs; for, besides that he is not included under the general words of these statutes, as it is his prerogative not to pay them to a subject, so it is beneath his dignity to receive them.

3 Blackstone's Commentaries 400 (Lewis ed. 1898). Professor Moore swiftly wittily observes that "the United States seems never to have had any kingly dignity preventing it from recovering costs; although for many years it followed the kingly prerogative against paying costs." 6 Moore's Federal Practice [P] 54.75[1]. In United States v. Chemical Foundation, Inc., 272 U.S. 1, 71 L. Ed. 131, 47 S. Ct. 1 (1926), the Supreme Court laid down the general rule that "in the absence of a statute directly authorizing it, courts will not give judgment against the United States for costs or expenses." Id. at 20. In 1948, Congress incorporated this rule as § 2412(a) of title 28. See Pub. L. No. 80-773, 62 Stat. 973 ("The United States shall be liable for fees and costs only when such liability is expressly provided for by Act of Congress.").

Congress took action to restrict the Government's immunity from costs in 1966 when it amended 28 U.S.C. § 2412(a) to read, in pertinent part, as follows:

Except as otherwise specifically provided by statute, a judgment for costs, as enumerated in section 1920 of this title but not including the fees and expenses of attorneys may be awarded to the prevailing party in any civil action brought by or against the United States or any agency or official of the United States acting in his official capacity, in any court having jurisdiction of such action. A judgment for costs when taxed against the Government shall, in an amount established by statute or court rule or order, be limited to reimbursing in whole or in part the prevailing party for the costs incurred by him in the litigation.

Pub. L. No. 89-507, 80 Stat. 308 (1966). The House Committee on the Judiciary expressed the amendment's purpose as one of "putting the private litigant and the United States on an equal footing as regards the award of court costs to the prevailing party in litigation involving the Government." H.R. Rep. No. 1535, 89th Cong., 2d Sess., reprinted in 1966 U.S. Code Cong. & Ad. News 2527, 2528 [hereinafter cited as House Report ].*fn1 This amended version of 28 U.S.C. § 2412(a) has remained in force with only minor changes, see Equal Access to Justice Act, Pub. L. No. 96-481, § 204(a), 94 Stat. 2327 (1980), as amended by Pub. L. No. 99-80, § 2(a), 99 Stat. 184 (1985). Although Payden relies on F.R.A.P. 39(b),*fn2 that rule confers no independent authority to award costs against the Government; in this case, any such award depends on whether Payden's motion to quash the grand jury subpoena was a "civil action" within 28 U.S.C. § 2412(a).

The limitation of the language to civil actions was deliberate. The draft of the 1966 amendment to 28 U.S.C. § 2412(a) submitted to Congress by the Department of Justice provided for an award of costs in "any action" brought by or against the United States. See House Report at 2531. The House Committee on the Judiciary amended the draft by inserting the word "civil" before "action," explaining that the addition "merely clarifies the intent of the bill." Id. at 2530. It would seem likely that when the committee used the term "civil action," it had in mind Rules 2 and 3 of the Federal Rules of Civil Procedure, which say, respectively, "There shall be one from of action be known as 'civil action'," and "A civil action is commenced by filing a complaint with the court." On that view, costs could not be awarded against the Government in any proceeding, though indubitably civil, which did not have the characteristics of a "civil action" under Rules 2 and 3. However, in 1968 the Advisory Committee on Appellate Rules, in commenting on F.R.A.P. 39(b), read the 1966 amendment more broadly as generally placing the United states "on the same footing as private parties with respect to the award of costs in civil cases " (emphasis supplied). We would thus have little doubt that 28 U.S.C. § 2412(a) would permit the award of costs to an intervenor who had successfully moved to quash a subpoena issued by the Government in a civil case brought by or against it, even though such a motion itself does not bear all the trappings of a "civil action."

However, this does not lead to the conclusion that costs may be awarded against the Government in favor of a successful movant to quash a grand jury subpoena. It is common ground that 28 U.S.C. § 2412(a) does not authorize the award of costs against the Government in favor of an acquitted defendant. It would seem quite incongruous that such a defendant-indeed, on Payden's logic, even a convicted defendant-could recover costs incurred on a successful motion to quash a trial subpoena or a successful appeal from the denial of such a motion.

If this be so, we see no reason for a different rule where the motion is to quash a grand jury subpoena. The predominant function of a grand jury proceeding-apparently its sole one in this case-is that of "preferring charges in serious criminal cases." Costello v. United States, 350 U.S. 359, 362, 100 L. Ed. 397, 76 S. Ct. 406 (1956). Proceedings before a grand jury are essentially criminal in nature, even though its functioning, like the criminal trial itself, may give rise to collateral controversies, such as motions to quash subpoenas, where criminality is not an immediate issue. It has been held that a grand jury proceeding is "a criminal proceeding" within the portion of the Criminal Appeals Act, 18 U.S.C. § 3731, that entitles the Government to appeal from a decision or order of a district court suppressing or excluding evidence. See Matter of Grand Jury Empanelled February 14, 1978, 597 F.2d 851, ...

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