Lumbard, Chief Judge, Feinberg, Circuit Judge, and Timbers, District Judge.*fn*
ON MOTION OF THE UNITED STATES TO DELETE COSTS, TREATED AS PETITION FOR REHEARING
The motion of the United States to delete costs is treated as a petition for rehearing, which petition is granted despite the fact that it was filed out of time. Federal Rules of Appellate Procedure, Rule 26(b).
In our previous opinion in this case, United States v. Certain Land, 415 F.2d 265 (2d Cir. Sept. 4, 1969), we awarded the costs of appeal to the appellant landowners. It now appears that such award in a condemnation action was improper. See 28 U.S.C. § 2412(a), 80 Stat. 308 (prior to amendment by Pub.L. 89-507, effective July 18, 1966); see also, United States v. Worley, 281 U.S. 339, 344, 50 S. Ct. 291, 74 L. Ed. 887 (1929); United States for Use of TVA v. Pressnell, 328 F.2d 580, 582 (6th Cir. 1964).
In opposing the government's petition, the appellants contend that since this appeal was filed and decided subsequent to the effective date of the amendment of section 2412 to permit costs to be recovered against the United States in actions such as this, our award of appeal costs was proper. This argument overlooks the plain language of Public Law 89-507, the amendatory enactment, which states:
"These amendments shall apply only to judgments entered in actions filed subsequent to the date of the enactment of this Act [July 18, 1966]."
See also Allen v. Rachal et al., 283 F. Supp. 986 (W.D.Tex.1967).
Since both the actions underlying this appeal were filed prior to July 18, 1966, it is apparent that we were without authority to award costs to the appellants. Accordingly, we amend our opinion and delete from it, and from our mandate, the direction, ...