David W. Monds v. Quitman Georgia

Case: 18-11704 Date Filed: 03/29/2019 Page: 1 of 18

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 18-11704
Non-Argument Calendar
________________________

D.C. Docket No. 7:16-cv-00130-HL

DAVID W. MONDS,

Plaintiff-Appellant,

versus

QUITMAN GEORGIA,

Defendant-Appellee.

________________________

Appeal from the United States District Court
for the Middle District of Georgia
________________________

(March 29, 2019)

Before WILSON, JORDAN, and JULIE CARNES, Circuit Judges.

PER CURIAM:
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David Monds, who is African-American, appeals pro se the district court’s

grant of summary judgment in favor of the City of Quitman, Georgia, on his race

discrimination claims brought pursuant to Title VII, 42 U.S.C. § 2000e, et seq, and

42 U.S.C. § 1981. Mr. Monds also appeals the district court’s grant of costs,

pursuant to Fed. R. Civ. P. 54(d)(1).

For the following reasons, we affirm in part and dismiss in part for lack of

jurisdiction.

I

When the City of Quitman’s City Clerk and Treasurer, Ms. Janice Jarvis,

announced her retirement, the City sought to fill her position. The City posted a job

announcement, prepared by the City Manager, Mr. Daniel Herring (a white male),

and the retiring Ms. Jarvis, who ensured the posting adequately explained the job

duties. The job posting stated, in pertinent part:

Maintaining primary ownership over cash, debt and
investment management and internal controls; manages
bank relationships and bank account management,
including overall account maintenance; oversees debt
issuance, service and compliance, including reporting and
disclosure; develops internal controls and financial
policies to promote effective governance and accurate
receipts, disbursements and investments; coordinates
external audit activities and audit preparation; researches
technical accounting issues, ensures compliance with
GAAP and prepares financial reports; prepares and
delivers monthly internal management reports to
communicate cash flow, receipts, disbursements,
investments and debt management activity; assists in the
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preparation of annual operation budget; ensures
compliance with all budgetary requirements . . . .

D.E. 11-11 at 124. Under “Minimum Requirements” the job posting stated:

“Bachelor Degree in Business or Public Administration, Accounting, Finance or

related field. At least five (5) years experience in local government accounting and

management preferred. Comparable combinations of education and experience will

be considered.” Id.

Mr. Monds applied for the position. He was one of five candidates Mr. Herring

selected for interviews by a panel consisting of himself, Mr. Virgil Walker, Ms.

Annie Bowers, and Mr. Kendall Blankumsee. 1

Mr. Monds possesses a high school diploma, a Bachelor of Arts degree in

Criminal Justice, and a Master of Science degree in Administration. He is a United

States Air Force Veteran with ten years’ experience with the Department of Justice’s

Federal Bureau of Prisons, where he worked in various human resources positions.

Mr. Monds spent six years in his last position as Human Resources Manager for the

Bureau of Prisons.

Ms. Brunhilde Hudson, who was ultimately selected for the position over Mr.

Monds and is a white woman, possesses a GED equivalent from her home country

1
Mr. Blankumsee, the only African-American member of the panel, owned and operated a funeral
home which was engaged in business dealings with Mr. Monds. Over concerns that their business
dealings presented an improper conflict of interest, Mr. Blankumsee recused himself from Mr.
Monds’ interview. Mr. Blankumsee participated in the other four interviews and in the final hiring
decision.
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of Germany. She worked for over fourteen years in various bookkeeping and

accounting roles for a quasi-governmental agency. Mr. Herring recommended that

the City Council hire Ms. Hudson, and after a formal motion and discussion, the

Council unanimously voted to hire Ms. Hudson as the next City Clerk and Treasurer.

During his interview, Mr. Monds was asked “What is GAAP?” Knowledge of

Generally Accepted Accounting Principles was indicated in the job description, but

Mr. Monds was unable to answer the question. The remainder of the interview

focused on his human resources experience. During her interview, Ms. Hudson

discussed her experience in accounting and bookkeeping and had evidently prepared

for the interview by researching the City’s budget. She was not asked about GAAP

because she brought it up on her own initiative.

After the City Council selected Ms. Hudson, Mr. Monds filed a charge with

the Equal Employment Opportunity Commission (“EEOC”), which issued him a

Notice of Right to Sue. Mr. Monds then filed a complaint against the City in the

United States District Court for the Middle District of Georgia, alleging intentional

discrimination on the basis of race. In its motion for summary judgment, the City

argued that (1) Mr. Monds failed to make a prima facie case of discrimination

because his lack of financial and accounting experience rendered him unqualified;

(2) even if he was qualified, the City had a legitimate, nondiscriminatory reason for

selecting Ms. Hudson (that she was more qualified); (3) he failed to show that this

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reason was pretextual; and (4) he produced no other evidence of racial

discrimination.

Mr. Monds responded with six arguments to show pretext. As he put it:

(1) Herring’s discriminatory recommendation; (2) deviated from the
established hiring practice; (3) Council members could not believe
Bru[n]hilde was more qualified; (4) Plaintiff’s superior qualifications;
(5) Mayor Brown admitted the Plaintiff’s race was a factor; and (6)
defendant’s reason for not hiring [Plaintiff] shifted over time.

D.E. 16-1 at 18 (quoting Mr. Monds’ brief).
The district court concluded that Mr. Monds was qualified for the position and

stated a prima facie case of discrimination. It also found that the City established a

legitimate, non-discriminatory justification for failing to hire Mr. Monds—that it

found Ms. Hudson to be more qualified. Finally, the district court found that Mr.

Monds had failed to produce evidence that the City’s justification was pretextual.

The district court granted summary judgment to the City and accordingly awarded

costs. After the City filed its bill of costs, but before the district court entered its

order taxing costs, Mr. Monds filed his notice of appeal.

II

We review a district court’s grant of summary judgment de novo, viewing the

record as a whole and drawing all reasonable inferences in favor of the non-moving

party. See Battle v. Bd. of Regents for Ga., 468 F.3d 755, 759 (11th Cir. 2006).

Summary judgment is only appropriate when there are no genuine disputes as to any

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material facts, and the movant is entitled to judgment as a matter of law. See id.;

Fed. R. Civ. P. 56(a).

A

Title VII of the Civil Rights Act of 1964 prohibits employers from failing to

hire a person “because of such individual’s race, color, sex, ethnicity, or national

origin. . . .” 42 U.S.C. § 2000e-2(a)(1). Similarly, 42 U.S.C. § 1981 ensures that

“[a]ll persons . . . shall have the same right . . . to make and enforce contracts . . . as

is enjoyed by white citizens . . . .” In the employment discrimination context, both

Title VII and § 1981 use the same legal framework and impose the same evidentiary

requirements. See Standard v. A.B.E.L. Servs., Inc., 161 F.3d 1318, 1330 (11th Cir.

1998). Thus, we analyze Mr. Monds’ Title VII and § 1981 claims together. See id.

A Title VII plaintiff bears the ultimate burden of persuading a jury, by a

preponderance of the evidence, that he was treated in a discriminatory manner. See

Earley v. Champion Int’l Corp., 907 F.2d 1077, 1081 (11th Cir. 1990). When, as

here, the plaintiff relies on circumstantial evidence to prove discriminatory intent,

we employ the burden-shifting framework set out in McDonnell Douglas Corp. v.

Green, 411 U.S. 792, 802 (1973). First, a plaintiff must establish a prima facie

failure-to-hire case by showing that he belonged to a protected class, that he applied

for and was qualified for an available position, that he was rejected, and that the

employer filled the position with someone outside the plaintiff’s class. See Walker

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v. Prudential Prop. & Cas. Ins. Co., 286 F.3d 1270, 1274–75 (11th Cir. 2002). The

plaintiff’s initial burden is not onerous, and need only “establish facts adequate to

permit an inference of discrimination.” Holifield v. Reno, 115 F.3d 1555, 1562 (11th

Cir. 1997).

If the plaintiff succeeds, the burden shifts to the defendant to “articulate a

legitimate, nondiscriminatory reason for the adverse employment action.” Quigg v.

Thomas Cnty. Sch. Dist., 814 F.3d 1227, 1237 (11th Cir. 2016). The employer need

only produce evidence “sufficient to raise a genuine issue of fact as to whether it had

a legitimate reason for not hiring the plaintiff.” Turnes v. AmSouth Bank, N.A., 36

F.3d 1057, 1061 (11th Cir. 1994).

If the defendant satisfies this “exceedingly light” burden, the presumption of

discrimination directed by the McDonnell Douglas framework “drops out of the

case.” Id. At this point, the plaintiff must rebut the employer’s reasons by showing

“both that the reason was false, and that discrimination was the real reason.”

Hornsby-Culpepper v. Ware, 906 F.3d 1302, 1312 (11th Cir. 2018) (citations and

internal quotation marks omitted). The plaintiff does so by demonstrating “such

weaknesses, implausibilities, inconsistencies, incoherencies, or contradictions in the

employer’s proffered legitimate reasons for its action that a reasonable factfinder

could find them unworthy of credence.” Combs v. Plantation Patterns, 106 F.3d

1519, 1538 (11th Cir. 1997) (internal citations and quotation marks omitted). The

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plaintiff may not “recast an employer’s proffered nondiscriminatory reasons or

substitute his business judgment for that of the employer.” Chapman v. AI

Transport, 229 F.3d 1012, 1030 (11th Cir. 2000) (en banc). If the employer’s reason

is one “that might motivate a reasonable employer,” the plaintiff must “meet that

reason head on and rebut it, and the employee cannot succeed by simply quarreling

with the wisdom of that reason.” Id. We address each part of the framework in turn.

We agree with the district court that Mr. Monds established a prima facie case

of discrimination. Mr. Monds, a black man, was qualified for the job he applied for,

but the City selected a white woman over him. See Walker, 286 F.3d at 1274. The

burden then shifted to the City to articulate a legitimate, nondiscriminatory reason

for hiring Ms. Hudson over Mr. Monds. See Turnes, 36 F.3d at 1061.

We also concur with the district court that the City satisfied its burden. The

City’s justification for hiring Ms. Hudson was that she was the most qualified

candidate, which we have held is a legitimate, nondiscriminatory reason. See, e.g.,

Cofield v. Goldkist, Inc., 267 F.3d 1264, 1268 (11th Cir. 2001). Thus, the burden

shifted to Mr. Monds to show that the reason proffered was pretextual.

The district court concluded that Mr. Monds failed to “meet that reason head

on and rebut it” rather than “simply quarrel[ ] with the wisdom of that reason.”

Chapman, 229 F.2d at 1030. In his attempt to rebut the City‘s reason, and challenge

the district court’s ruling, Mr. Monds argues that: (1) he is more qualified than Ms.

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Hudson; (2) Ms. Hudson is not qualified; (3) the City Council deviated from the

standard hiring process by selecting Ms. Hudson; (4) the City’s reason for hiring Ms.

Hudson shifted over time; (5) Mr. Herring recommended him in a discriminatory

fashion; (6) the “black Council members were excluded from his interview”; and (7)

the Mayor admitted that he believed race was a factor in the Council’s decision. We

consider each argument in turn.2

We will consider Mr. Monds’ first two arguments together, because they are

interrelated. Although a disparity in qualification between the hired employee and

the plaintiff may evidence pretext, the disparity must “of such weight and

significance that no reasonable person, in the exercise of impartial judgment, could

have chosen the candidate selected over the plaintiff.” See Cooper v. S. Co., 390

F.3d 695, 732 (11th Cir. 2004) (internal quotation marks omitted), overruled on

other grounds by Ash v. Tyson Foods, Inc., 546 U.S. 454, 457–58 (2006). 3 We

2
Mr. Monds cites to case law involving the “cat’s paw” theory to support his proposition that
“[Mr.] Herring’s discriminatory recommendation” evidences pretext. But this is not a cat’s paw
case. The cat’s paw theory applies only when actual decision-makers blindly rely on the
recommendation of a discriminatory non-decision-maker without undertaking an independent
investigation. See Stimpson v. City of Tuscaloosa, 186 F.3d 1328, 1332 (11th Cir. 1999). Here,
the City Council was the decision-maker, and did not blindly rely on Mr. Herring’s
recommendation to hire Ms. Hudson, whether discriminatory or not. There is no evidence in the
record showing that the decision to hire Ms. Hudson was the result of anything but discussion and
deliberation by the City Council. The City Council was not a “mere conduit” for Mr. Herring’s
recommendation. See id.
3
The district court relied on a standard that was first articulated in Cooper: that the “disparity in
qualifications [be] so apparent as to virtually jump off the page and slap you in the face.” See
Monds v. City of Quitman, No. 7:16-CV-130 (HL), 2018 WL 1528212, at *8 (M.D. Ga. Mar. 28,
2018) (internal quotation marks omitted). In Ash, however, the Supreme Court disapproved of
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addressed a similar argument in Cofield, where an employee argued that the disparity

in qualifications between herself and the man selected for the promotion evidenced

pretext. See 267 F.3d at 1268. Both candidates had managerial experience, and

while the plaintiff possessed more years of supervisory experience, the experience

of the person selected was at a higher level of management. Both candidates had

experience in areas the other lacked. Although we noted that the plaintiff may have

been justified in believing she was more qualified for the position, the disparity

between the two was not significant enough to evidence pretext. Id. at 1269.

Likewise, here the disparity between the qualifications of Mr. Monds and Ms.

Hudson is not “of such weight and significance that no reasonable person, in the

exercise of impartial judgment, could have chosen [Ms. Hudson] over [Mr. Monds].”

Cooper, 390 F.3d at 732. Ms. Hudson possessed less formal education than Mr.

Monds but she had years of more relevant experience. She worked over four years

as a quasi-governmental organization’s finance director, where she supervised

accounting strategies and procedures, budgeting, and preparation of financial

statements. Before that, she held positions as a bookkeeper, inventory control clerk,

and information technology administrator, each of which required involvement with

that test, stating that “[t]he visual image of words jumping off the page to slap you (presumably a
court) in the face is unhelpful and imprecise as an elaboration of the standard for inferring pretext
from superior qualifications.” 546 U.S. at 457. Since Ash, our Circuit has relied on the reasonable
person test, and we apply that test here.
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the organization’s financials. Mr. Monds lacked significant experience in finance.

Despite Mr. Monds’ more extensive education, Ms. Hudson had more experience in

an applicable field. Although Mr. Monds may be justified in believing he was more

qualified because of his formal education, as a matter of law, the disparity between

their qualifications is too slight to demonstrate pretext. See Cofield, 267 F.3d at

1268–69. See also Wilson v. B/E Aerospace, Inc., 376 F.3d 1079, 1090 (11th Cir.

2004) (concluding that a disparity did not evidence pretext when the plaintiff lacked

director and customer service experience as compared to the selected person,

although she made “self-serving assertions about her . . . leadership abilities . . . .”). 4

Ms. Hudson was qualified for the position of City Clerk. As to qualifications,

the job posting stated: “Bachelor Degree . . . At least five (5) years experience in

local government accounting and management preferred. Comparable combinations

of education and experience will be considered.” This language allowed for

flexibility in hiring someone who lacked a bachelor’s degree but made up for it in

relevant experience. And, as discussed above, Ms. Hudson possessed fourteen years

of financial experience in a quasi-government office. Mr. Monds cannot defeat

4
Mr. Monds produced evidence that he had some experience with financials while working for a
few months as a Waffle House manager, but this experience was not included on his resume or
Clerk application. He also states that he took accounting courses in college, but again, he neglected
to mention that on his resume, in his application, or at his interview. The City could not consider
Mr. Monds’ relevant qualifications if it did not know he possessed them.

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summary judgment by “quarrel[ing] with the wisdom” of the City’s determination

that Ms. Hudson’s education and experience qualified her for the position. See

Chapman, 229 F.2d at 1030.

The City Council also did not “deviate[ ] from the established hiring practice”

by allowing Ms. Hudson to apply without a bachelor’s degree or five years’

experience in local government accounting. As discussed above, a bachelor’s degree

and five years’ experience were flexible preferences, not stringent requirements.

Moreover, the record indicates that every previous City Clerk lacked a bachelor’s

degree. A deviation from standard hiring procedure can evidence pretext, see

Walker, 286 F.3d at 1279, but Mr. Monds has pointed to no hiring practice or

standard from which the City deviated. He simply argues that the “white applicant

was exempt from possessing a bachelor degree.” As discussed above, that contention

ultimately fails.

Mr. Monds’ next argument—that the City’s justifications “shifted over

time”—is also not supported by the record. Shifting justifications may evidence

pretext, see Cleveland v. Home Shopping Networking, Inc., 369 F.3d 1189, 1195

(11th Cir. 2004), but only when the justifications actually shift. See id. (“When

pressed on the reason why . . . Concello shifted from a contract, to a non-compete

agreement, to an unwritten policy, to a standard industry practice.”). In support of

this argument, Mr. Monds cites to several documents in the record, but does not

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identify any specific facts to support his contention that the City shifted its position.

See D.E. 11-1 at 10; 11-11 at 81, 126, 145. In fact, the cited documents suggest that,

since responding to the EEOC charge, the City has maintained that Ms. Hudson was

considered the best qualified person for the job.

Mr. Monds points to different circumstances during the hiring process that he

alleges show pretext: (1) Ms. Hudson was not asked about GAAP; (2) “black

Council members were excluded from [his] interview”; and (3) “Mayor Brown

admitted that [Mr.] Monds’ race was a factor.” Mr. Monds fails, however, to support

these assertions with evidence.

Although it is true that Ms. Hudson was not asked about GAAP and Mr.

Monds was, it is not because Ms. Hudson received special treatment. In the

interview notes, under the “What is GAAP” question, the Council noted that Ms.

Hudson “Volunteered info . . . during interview” demonstrating her knowledge of

GAAP. The City did not need to redundantly ask her about GAAP when she had

already demonstrated her knowledge of the concept. Further, the other candidates—

who were white—were asked about GAAP. Mr. Monds cannot point to any

evidence showing he was treated differently in his interview than the other

candidates. We note that the record does suggest that Ms. Hudson was more

prepared for her interview than other applicants, including Mr. Monds.

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There is likewise no evidence in the record that “black Council members were

excluded” from Mr. Monds’ interview. Only one of the two black councilmembers,

Mr. Blankumsee, was part of the interview process for any of the candidates, [and

he recused himself from Mr. Monds’ interview because of their ongoing business

relationship. He was not “excluded” in the manner Mr. Monds suggests.

Importantly, both black councilmembers remained part of the decision-making

process and voted to hire Ms. Hudson.

Mr. Monds also cannot point to any evidence that “the Mayor admitted [Mr.]

Monds’ race was a factor.”5 The Mayor answered affirmatively when asked if he

believed that race factored into the hiring decision, but he did not testify to a single

event, statement, or occurrence that informed his conclusion. On this record, such

speculation—the Mayor’s unsupported subjective belief—does not raise a genuine

issue of material fact from which a reasonable jury could infer pretext and

discrimination. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252 (1986). See

5
The district court stated that any statements by the Mayor are irrelevant. This is not necessarily
the case. See Fed. R. Evid. R. 401. The Mayor was involved in the discussions regarding the
candidates and his testimony could be relevant to show discriminatory animus. Title VII imposes
no special evidentiary requirement, see Desert Palace, Inc. v. Costa, 539 U.S. 90, 99 (2003), and
a non-decision-maker’s testimony based upon his personal knowledge can be useful in proving
discriminatory intent. See, e.g., Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 151
(2000) (acknowledging a co-worker’s testimony of the disparity between the company’s treatment
of him versus the plaintiff). Here, although Mr. Herring was not a decision-maker, his testimony
is relevant in evaluating the elements of Mr. Monds’ claims.
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also Cooper, 390 F.3d at 745 (holding that an employee’s conclusory testimony

based on her subjective belief could not preclude summary judgment against her).

In sum, Mr. Monds failed to meet the City’s legitimate, nondiscriminatory

reason head-on and rebut it by showing both that the “reason was false, and that

discrimination was the real reason.” Hornsby-Culpepper, 906 F.3d at 1312. Mr.

Monds felt he was more qualified than Ms. Hudson, but “[f]ederal courts do not sit

as a super-personnel department that reexamines an entity’s business decisions.”

Elrod v. Sears, Roebuck & Co., 939 F.2d 1466, 1470 (11th Cir. 1991). The City

articulated a legitimate, nondiscriminatory reason for hiring Ms. Hudson over Mr.

Monds, a reason Mr. Monds failed to rebut. Thus, the district court did not err by

granting summary judgment to the City of Quitman.

B

We now address Mr. Monds’ appeal of the district court’s award of costs to

the City. We conclude that we lack jurisdiction to hear Mr. Monds’ appeal of the

clerk’s order taxing costs.

A notice of appeal requires the appealing party to “designate the judgment,

order or part thereof appealed from.” Fed. R. App. P. 3(c)(1)(B). Although the time

for appeal is jurisdictional and strictly applied, see Fed. R. App. P. 4, the Supreme

Court has held that the requirements for Rule 3, though also jurisdictional in nature,

should be construed liberally. See Smith v. Barry, 502 U.S. 244, 248 (1992). Thus,

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if a brief satisfies the requirements of Rule 3(c) and is timely, it may function as a

notice of appeal. Id. at 248–49.

Following Smith, we have held that when there is an overriding intent to

appeal, a failure to strictly satisfy the requirements of Rule 3 is not fatal. See, e.g.,

McDougald v. Jensen, 786 F.2d 1465, 1474 (11th Cir. 1986). But when a notice of

appeal is filed before the order appealed from is issued, the party could not have

intended to appeal that order, because it did not exist when the notice of appeal was

filed. Id.

Two cases are instructive. In McDougald, 786 F.2d 1465, 1471 (11th Cir.

1986), a mother timely appealed a temporary restraining order and declaratory

judgment against her. Following the filing of the notice of appeal, the district court

entered a permanent injunction. The mother sought review of the permanent

injunction but did not amend her notice of appeal or file a new notice of appeal

following the grant of the permanent injunction. We concluded that we did not have

jurisdiction to hear the appeal of the permanent injunction. Because the order

granting the permanent injunction did not exist at the time the mother filed the notice

of appeal, she could not have intended to appeal that order. See id. at 1474.

Similarly, in LaChance v. Duffy’s Draft House Inc., 146 F.3d 832, 834 (11th

Cir. 1998), a former employee filed a notice of appeal after a district court granted

summary judgment to the employer. Soon thereafter, the employer filed a motion

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for attorney’s fees and costs, which the district court subsequently granted. The

employee did not amend his notice of appeal to include the grant of attorney’s fees

and costs, but nonetheless sought review of that order. We held that we did not have

jurisdiction. See id. at 838. Because the order granting attorney’s fees and costs did

not exist at the time the notice of appeal was filed, the employee could not have

intended to appeal it.

Here, following our precedent in LaChance and McDougald, we do not have

jurisdiction over Mr. Monds’ appeal of the order taxing costs to the City. The district

court entered judgment and awarded costs to the City, see D.E. 20, and the City then

filed its bill of costs. See D.E. 21. But before the clerk entered an order taxing costs,

Mr. Monds filed his notice of appeal. D.E. 22. We cannot exercise jurisdiction over

Mr. Monds’ appeal of the clerk’s order taxing costs, because it did not exist at the

time of the filing of the notice of appeal. See LaChance, 146 F.3d at 838. Thus, Mr.

Monds could not have intended to appeal it. See id. 6

6
The City argues that Mr. Monds has waived the issue of costs on appeal because he failed to
object to the order taxing costs within the time allowed under Fed. R. Civ. P. 54(d)(1). Many of
our sister circuits have addressed this issue. Some have concluded that a failure to timely object
within the period allowed by Rule 54 waives the issue on appeal. See Bloomer v. UPS, 337 F.3d
1220, 1220−21 (10th Cir. 2003); Rowe v. Maremont Corp., 850 F.2d 1226, 1244 (7th Cir. 1988).
Other have held only that a complete failure to object at the district court level waives the issue on
appeal. See Ahlberg v. Chrysler, 481 F.3d 630, 638−39 (8th Cir. 2007); Walker v. California, 200
F.3d 624, 625–26 (9th Cir. 1999); Prince v. Poulos, 876 F.2d 30, 34 (5th Cir. 1989). Here, because
we lack jurisdiction, we do not reach the question of waiver.
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III

In conclusion, the district court properly ruled that Mr. Monds failed to rebut

the City’s legitimate, nondiscriminatory reason for hiring Ms. Hudson. And because

Mr. Monds filed his notice of appeal before the district court taxed costs, we lack

jurisdiction to consider Mr. Monds appeal of that order. Therefore, we affirm the

district court’s order granting summary judgment to the City of Quitman and dismiss

the appeal of the order taxing costs for want of jurisdiction.

AFFIRMED IN PART and DISMISSED IN PART.

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