UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
filed: September 19, 1989.
RAYMOND EDWARD JAMES AND DANIEL CARLTON FREELAND
J. MICHAEL QUINLAN, DIR. BUREAU OF PRISONS, EDWIN M. MEESE, III, U.S.A. ATTORNEY GENERAL JAMES J. WEST, U.S. ATTORNEY RAYMOND EDWARD JAMES AND DANIEL CARLTON FREELAND, APPELLANTS
Appeal from the United States District Court for the Middle District of Pennsylvania, D.C. Civil No. 88-0217.
Mansmann, Hutchinson and Van Dusen, Circuit Judges.
Opinion OF THE COURT
SUR REFUSAL TO TAX COSTS
HUTCHINSON, Circuit Judge
We have before us appellees' objection to the Clerk of the Court's (Clerk's) refusal to tax costs against the appellants who are proceeding pro se and have been granted in forma pauperis status by this Court. We conclude that this Court's longstanding policy of not imposing costs against in forma pauperis appellants when the United States or its officers are involved in the action conforms with the applicable law and will therefore deny appellees' motion.
Appellants Raymond Edward James (James) and Daniel Carlton Freeland (Freeland) brought suit in the United States District Court for the Middle District of Pennsylvania against J. Michael Quinlan Director of the Bureau of Prisons, United States Attorney General Edwin M. Meese, III and Acting United States Attorney James J. West.*fn1 James and Freeland challenged the constitutionality of the Federal Bureau of Prisons' Inmate Financial Responsibility Program (IFRP) and argued that it was enacted in violation of the Administrative Procedures Act.*fn2 They proceeded pro se and the district court granted them in forma pauperis status. Their action was referred to a magistrate, who recommended that it be dismissed as frivolous. The magistrate based his recommendation on two unpublished opinions of the United States District Court for the Middle District of Pennsylvania in which similar suits had been dismissed. The district court gave James and Freeland ten days to file objections to the magistrate's report, but declined to give them the slip opinions that the magistrate relied on. On May 26, 1988, after they had filed objections to the report, the district court dismissed James's and Freeland's complaint. In its accompanying memorandum opinion the district court also relied on the two unpublished opinions.
James and Freeland appealed, arguing both that the IFRP was unconstitutional and that the district court violated their due process rights by not providing them with the slip opinions. We affirmed the dismissal. See James v. Quinlan, 866 F.2d 627 (3d Cir. 1989). A subsequent order dated January 30, 1989, prepared by the Clerk in the course of issuing the judgment for this case, stated that "Costs [are] taxed against the appellants." See Government's Motion for Reconsideration, Exhibit 1 (filed April 21, 1989).
On April 6, 1989, the government submitted a bill of costs to the Clerk's Office. By order dated April 17, 1989, the Clerk denied the bill of costs, stating that it should have been received in the Clerk's Office by February 13, 1989. The government moved for reconsideration, arguing that its bill of costs was timely filed because it had not received the January 30 order taxing costs against the appellants until March 31, 1989.*fn3 James and Freeland objected to the government's motion. They contended, among other things that their in forma pauperis status precluded taxation of costs against them.
On May 11, 1989, the Clerk denied the government's motion for reconsideration, stating:
The Clerk when preparing the judgment issued in this appeal taxed costs in error since it is this Court's consistent and longstanding policy not to tax costs in favor of, or against, the government when a party is proceeding in forma pauperis. Accordingly, an amended judgment deleting the costs will be issued ten (10) days from the date of this order.
The government submitted a motion, with a supporting memorandum, objecting to the denial of costs. That motion is now before us for disposition.
When a district court judgment is affirmed on appeal, costs are presumptively awarded to the winning party under Federal Rule of Appellate Procedure 39(a). It provides, in part:
Except as otherwise provided by law, if an appeal is dismissed, costs shall be taxed against the appellant unless otherwise agreed by the parties or ordered by the court; if a judgment is affirmed, costs shall be taxed against the appellant unless otherwise ordered. . . .
Fed. R. App. P. 39(a) (emphasis added). See In re Penn Cent. Trans. Co., 630 F.2d 183, 189 (3d Cir. 1980) (presumption is that prevailing party is entitled to costs). The government relies on Rule 39(a) to support its contention that costs should be taxed in its favor in this case. It argues that there is no rule or authority supporting this Court's policy of consistently declining to award costs for or against the United States in an in forma pauperis action. After reviewing the law, we disagree with the government.
The government's analysis is flawed because it overlooks the interaction between Federal Rule of Appellate Procedure 39(b) and 28 U.S.C.A. § 1915. When the United States government is involved, Rule 39(b) and § 1915 combine to modify the general approach to appellate costs set out in Rule 39(a). Rule 39(b) controls whether costs should be awarded when the United States government is involved in an appeal. It reads:
In cases involving the United States or an agency or officer thereof, if an award of costs against the United States is authorized by law, costs shall be awarded in accordance with the provisions of [Rule 39(a)]; otherwise, costs shall not be awarded for or against the United States.
Fed. R. App. P. 39(b) (emphasis added).
Rule 39(b)'s prohibition against awarding costs either for or against the United States when such awards are not specifically authorized by law comes into play in conjunction with 28 U.S.C.A. § 1915, governing proceedings in forma pauperis. Subsections (a) and (e) of § 1915 provide, in relevant part:
(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person who makes affidavit that he is unable to pay such costs or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant's belief that he is entitled to redress.
(e) Judgment may be rendered for costs at the conclusion of the suit or action as in other cases, but the United States shall not be liable for any of the costs thus incurred. If the United States has paid the cost of a stenographic transcript or printed record for the prevailing party the same shall be taxed in favor of the United States.
28 U.S.C.A. § 1915(a), (e) (West 1966) (emphasis added). Section 1915(e) explicitly states that "the United States shall not be liable for any of the costs" incurred in in forma pauperis appeals. This compels the conclusion that Rule 39(b) does not allow costs to be awarded either in favor of or against the United States in such appeals.
The Notes of the Advisory Committee on Appellate Rules point out that Rule 39(b) has a two-fold purpose. First, it retains sovereign or governmental immunity's blanket protection of the United States government and its agencies and officers against an award of appellate costs unless such an award is specifically authorized by law. Second, in the interest of fairness, it precludes the United States from pursuing appellate costs in such cases.
[Rule 39(b)] [appears] to be based on the view that if the United States is not subject to costs if it loses, it ought not be entitled to recover costs if it wins.
Fed. R. App. P. 39 advisory committee's note, subdivision (b). The United States' sovereign immunity from an award of costs has since been extensively waived in civil cases, see 28 U.S.C.A. § 2412 (West Supp. 1989). However, § 1915(e) leaves the government fully protected against costs in in forma pauperis cases.
We recognize that several circuits have allowed costs in in forma pauperis cases that did not involve the United States government, at least when frivolous or malicious appeals were involved. See Freeze v. Griffith, 849 F.2d 172, 176 (5th Cir. 1988) (per curiam); Lay v. Anderson, 837 F.2d 231, 232-33 (5th Cir. 1988) (per curiam); Galvan v. Cameron Mut. Ins. Co., 831 F.2d 804, 805-06 (8th Cir. 1987) (per curiam) (assessing double costs against indigent for filing and appealing frivolous civil rights claim); Harris v. Forsyth, 742 F.2d 1277, 1278-79 (11th Cir. 1984) (per curiam).*fn4 Cf. In re McDonald, 489 U.S. 180, 109 S. Ct. 993, 103 L. Ed. 2d 158 (1989) (per curiam) (similar concerns about frivolous appeals and petitions led the Supreme Court to bar prospectively litigious prisoner from proceeding in forma pauperis when seeking extraordinary writs). None of these cases involved the United States or one of its agencies or officers. Under Rule 39(b) a different situation is presented when the United States is the party seeking costs.
There may indeed be no valid reason, from a practical standpoint, to make a distinction between the United States and other parties when deciding whether to assess costs against in forma pauperis appellants. Many of the same concerns about taxing costs that are important in the typical in forma pauperis appeal*fn5 also appear to be important in cases involving the United States.*fn6 Nevertheless, this Court's "consistent and longstanding policy" of not taxing costs in favor of or against the United States in in forma pauperis appeals appears to be soundly based on the text of Rule 39(b) and § 1915(e). This panel is therefore constrained to follow it.*fn7
The government's motion will be denied.