to tax costs, but that discretion is restricted by Fed R App P 39(e), which provides: Costs on 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. [Emphasis added.] In cases such as the present case, in which a party has obtained a supersedeas bond or stay bond and collateralized that bond with a letter of credit, the federal circuits have generally held a taxed cost to be “reasonable” under Rule 39(e) if the total c ) (<HOLDING>). A minority of jurisdictions has refused to
holding that taxable costs included only the premium on a surety bond posted on appeal not the fees paid for letters of credit to secure the bond where the state statute and court rule only specifically allowed for premium on any surety bond holding that surety was liable to subcontractor on payment bond because payment bond applied to any claimant who among other things supplied materials that were reasonably required for use in the performance of the subcontract  holding that the defendants were entitled to recover as costs not only bond premiums but the additional cost to obtain a letter of credit that was required by the surety as collateral before the issuance of bond holding that the letter of credit was substantially equivalent to posting a supersedeas bond and the 100 cost was reasonable and probably less than the premium of a surety bond holding that the bond was intended to and did substantially comply with sjection 71323 therefore because its conditions were not broader and more protective than the statute required the contention that the bond was a common law bond failed