Case: 08-20133 Document: 0051402315 Page: 1 Date Filed: 10/02/2008

United States Court of Appeals
FIFTH CIRCUIT OFFICE OF THE CLERK CHARLES R. FULBRUGE III CLERK TEL. 504-310-7700 600 S. MAESTRI PLACE NEW ORLEANS, LA 70130

October 2, 2008 MEMORANDUM TO COUNSEL OR PARTIES LISTED BELOW Regarding: Fifth Circuit Statement on Petitions for Rehearing or Rehearing En Banc

No. 08-20133 Crummey v. Klein Indep Sch Dist USDC No. 4:07-CV-1685 ---------------------------------------------Enclosed is a copy of the court's decision. The court has entered judgment under FED. R. APP. P. 36. (However, the opinion may yet contain typographical or printing errors which are subject to correction.) FED. R. APP. P. 39 through 41, and 5TH CIR. RULES 35, 39, and 41 govern costs, rehearings, and mandates. 5TH CIR. RULES 35 and 40 require you to attach to your petition for panel rehearing or rehearing en banc an unmarked copy of the court's opinion or order. Please read carefully the Internal Operating Procedures (IOP's) following FED. R. APP. P. 40 and 5TH CIR. R. 35 for a discussion of when a rehearing may be appropriate, the legal standards applied and sanctions which may be imposed if you make a nonmeritorious petition for rehearing en banc. Direct Criminal Appeals. 5TH CIR. R. 41 provides that a motion for a stay of mandate under FED. R. APP. P. 41 will not be granted simply upon request. The petition must set forth good cause for a stay or clearly demonstrate that a substantial question will be presented to the Supreme Court. Otherwise, this court may deny the motion and issue the mandate immediately. Pro Se Cases. If you were unsuccessful in the district court and/or on appeal, and are considering filing a petition for certiorari in the United States Supreme Court, you do not need to file a motion for stay of mandate under FED. R. APP. P. 41. The issuance of the mandate does not affect the time, or your right, to file with the Supreme Court. The judgment entered provides that plaintiff-appellant defendants-appellees the costs on appeal. Sincerely, CHARLES R. FULBRUGE III, Clerk By: Joseph Armato, Deputy Clerk Enclosure Mr Brent E Crummey Mr Adam David Courtin Mr David M Feldman Ms Ellen Huchital Spalding pay to

Case: 08-20133 Document: 0051566035 Page: 1 Date Filed: 10/02/2008
UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT

BILL OF COSTS NOTE: The Bill of Costs is due in this office within 14 days from the date of the opinion, See FED. R. APP. P. & 5TH CIR. R. 39. Untimely bills of costs must be accompanied by a separate motion to file out of time, which the court may deny. _______________________________________________ v. __________________________________________ No. _____________________
The Clerk is requested to tax the following costs against: _________________________________________________________________________________________ COSTS TAXABLE UNDER Fed. R. App. P. & 5th Cir. R. 39
No. of Copies

REQUESTED
Pages Per Copy Cost per Page* Total Cost No. of Documents

ALLOWED (If different from amount requested)
Pages per Document Cost per Page* Total Cost

Docket Fee ($450.00) Appendix or Record Excepts Appellant’s Brief Appellee’s Brief Appellant’s Reply Brief Other:

Total $ ________________

Costs are taxed in the amount of $ _______________

Costs are hereby taxed in the amount of $ _______________________ this ________________________________ day of __________________________, ___________.
CHARLES R. FULBRUGE III, CLERK

State of County of _________________________________________________

By ____________________________________________ Deputy Clerk

I _____________________________________________________________, do hereby swear under penalty of perjury that the services for which fees have been charged were incurred in this action and that the services for which fees have been charged were actually and necessarily performed. A copy of this Bill of Costs was this day mailed to opposing counsel, with postage fully prepaid thereon. This _______________ day of ________________________________, ______________. _____________________________________________________________________ (Signature) *SEE REVERSE SIDE FOR RULES GOVERNING TAXATION OF COSTS Attorney for __________________________________________

Case: 08-20133 Document: 0051566035 Page: 2 Date Filed: 10/02/2008
FIFTH CIRCUIT RULE 39 39.1 Taxable Rates. The cost of reproducing necessary copies of the brief, appendices, or record excerpts shall be taxed at a rate not higher than $0.15 per page, including cover, index, and internal pages, for any for of reproduction costs. The cost of the binding required by 5TH CIR. R. 32.2.3that mandates that briefs must lie reasonably flat when open shall be a taxable cost but not limited to the foregoing rate. This rate is intended to approximate the current cost of the most economical acceptable method of reproduction generally available; and the clerk shall, at reasonable intervals, examine and review it to reflect current rates. Taxable costs will be authorized for up to 15 copies for a brief and 10 copies of an appendix or record excerpts, unless the clerk gives advance approval for additional copies. 39.2 Nonrecovery of Mailing and Commercial Delivery Service Costs. Mailing and commercial delivery fees incurred in transmitting briefs are not recoverable as taxable costs. 39.3 Time for Filing Bills of Costs. The clerk must receive bills of costs and any objections within the times set forth in FED. R. APP. P. 39(D). See 5TH CIR. R. 26.1. FED. R. APP. P. 39. COSTS

(a) Against Whom Assessed. The following rules apply unless the law provides or the court orders otherwise; (1) if an appeal is dismissed, costs are taxed against the appellant, unless the parties agree otherwise; (2) if a judgment is affirmed, costs are taxed against the appellant; (3) if a judgment is reversed, costs are taxed against the appellee; (4) if a judgment is affirmed in part, reversed in part, modified, or vacated, costs are taxed only as the court orders. (b) Costs For and Against the United States. Costs for or against the United States, its agency or officer will be assessed under Rule 39(a) only if authorized by law. ©) Costs of Copies Each court of appeals must, by local rule, fix the maximum rate for taxing the cost of producing necessary copies of a brief or appendix, or copies of records authorized by rule 30(f). The rate must not exceed that generally charged for such work in the area where the clerk’s office is located and should encourage economical methods of copying. (d) Bill of costs: Objections; Insertion in Mandate. (1) A party who wants costs taxed must – within 14 days after entry of judgment – file with the circuit clerk, with proof of service, an itemized and verified bill of costs. (2) Objections must be filed within 10 days after service of the bill of costs, unless the court extends the time. (3) The clerk must prepare and certify an itemized statement of costs for insertion in the mandate, but issuance of the mandate must not be delayed for taxing costs. If the mandate issues before costs are finally determined, the district clerk must – upon the circuit clerk’s request – add the statement of costs, or any amendment of it, to the mandate. (e) Costs of Appeal Taxable in the District Court. The following costs on appeal are taxable in the district court for the benefit of the party entitled to costs under this rule: (1) the preparation and transmission of the record; (2) the reporter’s transcript, if needed to determine the appeal; (3) premiums paid for a supersedeas bond or other bond to preserve rights pending appeal; and (4) the fee for filing the notice of appeal.

Case: 08-20133 Document: 005159286 Page: 1 Date Filed: 10/02/2008

IN THE UNITED STATES COURT OF APPEALS FOR THE FIFTH CIRCUIT United States Court of Appeals Fifth Circuit

FILED
October 2, 2008

No. 08-20133 Summary Calendar

Charles R. Fulbruge III Clerk

BRENT E. CRUMMEY, Plaintiff - Appellant, v. KLEIN INDEPENDENT SCHOOL DISTRICT; THOMAS PETREK; DEBORAH H. WEHNER, Defendants - Appellees.

Appeal from the United States District Court for the Southern District of Texas 4:07-CV-1685

Before DAVIS, GARZA, and PRADO, Circuit Judges. PER CURIAM:* Brent E. Crummey brought this lawsuit complaining that the defendantsappellees, Klein Independent School District (“KISD”) and two employees of the KISD tax office, declined to accept Crummey’s fifty-dollar United States American Eagle gold coins for any more than the face value of the coins in Federal Reserve Note dollars as tender in payment for taxes Crummey owed.

Pursuant to 5TH CIR. R. 47.5, the court has determined that this opinion should not be published and is not precedent except under the limited circumstances set forth in 5TH CIR. R. 47.5.4.

*

Case: 08-20133 Document: 005159286 Page: 2 Date Filed: 10/02/2008

No. 08-20133 Crummey, proceeding pro se, sought to assert various federal and state causes of action arising from this incident, including that the appellees violated Crummey’s alleged right under Article 1, Section 10 of the Constitution to pay a debt in gold coin.2 The district court, adopting the Memorandum,

Recommendation and Order of the Magistrate Judge, dismissed sua sponte Crummey’s federal claims and declined to exercise supplemental jurisdiction over Crummey’s remaining state law claims, which were remanded to state court. Crummey appeals. The core of Crummey’s appeal rests on Crummey’s argument that the legal monetary value of fifty dollars in United States American Eagle gold coin is different than (and worth more than) the legal monetary value of fifty dollars in Federal Reserve Notes, or as it is sometimes affectionately called, cash. Regardless of any currency confusion that may have arisen in bygone eras, our present standard is clear: As legal tender, a dollar is a dollar. Crummey suggests that the United States has a parallel or dual monetary valuation system for the dollar. Crummey relies for support on a statute authorizing the Secretary of the Treasury to mint certain coins and to sell them to the public at a price based on the market value of the bullion plus production costs. See 31 U.S.C. § 5112(f)(1). According to Crummey, the fact that the United States Mint sells coins into circulation at an amount that is often different than the face value of the coins, supports his theory for the existence of some form of dollar-for-dollar exchange rate between the “coin” dollar and the “FRN” dollar. Crummey’s argument conflates the market value of such coins as bullion, or as a collectors’ items, with the value of the coins as legal tender. Fittingly, the Supreme Court has explained:
Article 1, Section 10 of the Constitution provides, in part: “No State shall . . . make any Thing but gold and silver Coin a Tender in Payment of Debts.”
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Case: 08-20133 Document: 005159286 Page: 3 Date Filed: 10/02/2008

No. 08-20133 A coin dollar is worth no more for the purposes of tender in payment of an ordinary debt than a note dollar. The law has not made the note a standard of value any more than coin. It is true that in the market, as an article of merchandise, one is of greater value than the other; but as money, that is to say, as a medium of exchange, the law knows no difference between them. Thompson v. Butler, 95 U.S. 694, 696 (1877). “United States coins and currency (including Federal reserve notes and circulating notes of Federal reserve banks and national banks) are legal tender for all debts, public charges, taxes, and dues. Foreign gold or silver coins are not legal tender for debts.” 31 U.S.C. § 5103; see also Mathes v. Commissioner of Internal Revenue, 576 F.2d 70, 71 (5th Cir. 1978) (per curiam) (“Congress has delegated the power to establish this national currency which is lawful money to the Federal Reserve System.”); United States v. Wangrud, 533 F.2d 495, 495 (9th Cir. 1976) (per curiam) (“By statute it is established that federal reserve notes, on an equal basis with other coins and currencies of the United States, shall be legal tender for all debts, public and private, including taxes.”). We reject Crummey’s suggestion that the “dollar” has multiple meanings or values within the United States system of currency. See 31 U.S.C. § 5101 (“United States money is expressed in dollars, dimes or tenths, cents or hundreths, and mills or thousandths. A dime is a tenth of a dollar, a cent is a hundredth of a dollar, and a mill is a thousandth of a dollar.”). As legal tender, a dollar is a dollar, regardless of the physical embodiment of the currency. The legal monetary value of Crummey’s fifty dollar American Gold Eagle coin is equivalent to that of a fifty dollar Federal Reserve Note. Crummey’s argument to the contrary, on which the bulk of his appeal rests, fails. Having carefully considered all of Crummey’s issues on appeal in light of the record and the applicable law, we find them to be without merit. For these reasons, the judgment of the district court is AFFIRMED.

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Case: 08-20133 Document: 005159286 Page: 4 Date Filed: 10/02/2008

No. 08-20133 Furthermore, appellees’ motion for sanctions pursuant to Rule 38 of the Federal Rules of Appellate Procedure is DENIED. Crummey’s alternative request for an evidentiary hearing on appellees’ motion for sanctions is DENIED as moot.

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