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.
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 The magistrate based his recommendation on two unpublished opinions of the United States District Court for the Middle District of Pennsylvania in which similar suits had been dismissed.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 In its accompanying memorandum opinion the district court also relied on the two unpublished opinions.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 ...