2009 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-16-2009

Porter v. Dept Treasury

Precedential or Non-Precedential: Precedential

Docket No. 07-3859

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Recommended Citation

"Porter v. Dept Treasury" (2009). 2009 Decisions. Paper 1440.

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PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

____________

Nos. 07-3859, 08-4663, 09-1162

_____________

DANA M. PORTER

 

v.

DEPT. OF THE TREASURY

*MICHAEL BUESGENS

 Appellant in No. 07-3859

*(Pursuant to Rule 12(a), F.R.A.P.)

 

On Appeal from the United States District Court

for the Eastern District of Pennsylvania

(D.C. Civil Action No. 07-cv-01541)

District Judge: Honorable Bruce W. Kauffman

 

TOMMIE H. TELFAIR, 

 Appellant in No. 08-4663

v.

KAREN P. TANDY, Administrator-Drug Enforcement
2

Administration; GERARD P. MCALEER, Director/Senior

Officer-DEA: Newark; 1-50 UNKNOWN DEA AGENTS; 1-

50 UNKNOWN FEDERAL AGENTS; RAY MCCARTHY,

Chief of Police, Newark; MURAD MUHAMMED, RobertyHomicide, OIC Newark Police; 1-50 UNKNOWN POLICE

OFFICERS; PAUL W. BERGRIN, Private Attorney-District

of New Jersey; CHRISTOPHER CHRISTY, AUSA-District

of New Jersey

 

On Appeal from the United States District Court

for the District of New Jersey

(D.C. Civil Action No. 08-cv-0731)

District Judge: Honorable William J. Martini

 

JEWEL POWELL; WINSTON POWELL a/k/a TOMMY

POWELL, et. al.

v.

VIOLET O. MAHABIR; LORING W. SEWER; MARILYN

E. WOODLEY; IRVIN A. SEWER; EARL A. SEWER;

WARREN A. SEWER; LUCINDA C. ANTHONY; JUDITH

O. CALLWOOD; LORREL A. SEWER,

 Appellants in No. 09-1162

____________________________________

On Appeal from the United States District Court

for the District of the Virgin Islands

(D.C. Civil Action No. 05-cv-00083)
3

District Judge: Honorable Raymond J. Finch

 

Submitted Pursuant to Third Circuit LAR 27 and I.O.P. 10

Before: McKEE, RENDELL and SMITH, Circuit Judges

(Filed: April 16, 2009)

Susan R. Becker, Esq.

Office of United States Attorney

615 Chestnut Street, Suite 1250

Philadelphia, PA 19106

Counsel for Appellee Department of Treasury

Jeffrey B. Moorehead, Esq.

1132 King Street

Christiansted, VI 00820

Counsel for Appellees Jewell Powell and Winston

Powell, a/k/a/ Tommy Powell

Susan B. Moorehead, Esq.

Henry C. Smock, Esq.

No. 11A Norre Gade

P.O. Box 1498

St. Thomas, VI 00804

Counsel for Appellants Violet O. Mahabir, Loring W.

Sewer, Marilyn E. Woodley, Irvin A. Sewer, Earl A.

Sewer, Warren A. Sewer, Lucinda C. Anthony, Judith

O. Callwood and Lorrel A. Sewer

Michael Buesgens

Dana M. Porter

Thomas Telfair

Proceeding Pro Se
4

 

OPINION

 

SMITH, Circuit Judge.

We have consolidated for decision three cases that

present questions regarding payment of the fees required by

Federal Rule of Appellate Procedure 3(e) for initiating an appeal

in this Court. Two of the cases involve appellants seeking the

return of their filing and docketing fees upon the voluntary

dismissal of their appeals. The third case concerns an appellant

who seeks a waiver of the filing and docketing fees under the

Prison Litigation Reform Act of 1995 (“PLRA”), 28 U.S.C. §

1915(b).

I.

Porter v. Dep’t of the Treasury, C.A. No. 07-3859. In

April 2007, Dana Porter, a former employee of the Internal

Revenue Service (“IRS”) in Philadelphia, Pennsylvania, filed an

employment discrimination lawsuit against the Department of

the Treasury. Appellant Michael Buesgens, a Texas resident and

former employee of the IRS’s Austin, Texas division, moved to

intervene in and join Porter’s case, alleging that the IRS had

discriminated against him due to a disability. The District Court

denied these motions as well as those that Buesgens

subsequently filed. Buesgens appealed from the District Court’s

orders; however, he now seeks to dismiss his appeal pursuant to

Federal Rule of Appellate Procedure 42(b). He also requests a

refund of the $455 filing and docketing fees that he paid. 
5

Powell, et al. v. Mahabir, et al., C.A. No. 09-1162. Jewel

and Winston Powell appealed from a judgment of the Superior

Court of the Virgin Islands to the Appellate Division of the

District Court of the Virgin Islands. See 48 U.S.C. § 1613a

(providing the Appellate Division of the District Court with

jurisdiction to review final orders of the Superior Court of the

Virgin Islands). The order in question held that the defendants

(Violet Mahabir and others, hereinafter “Mahabir appellants”)

had proved their ownership of certain real property by adverse

possession. On December 9, 2008, the District Court remanded

the case to the Superior Court for further proceedings. 

On January 26, 2009, through counsel, the Mahabir

appellants appealed from the District Court’s order and paid the

$455 filing and docketing fees. Soon thereafter, the Clerk of

this Court advised the parties that the appeal was subject to

dismissal because it appeared that the District Court’s order was

not final or otherwise appealable at this time. The Mahabir

appellants now ask us to dismiss their appeal under Rule 42(b)

and refund their payment of the filing and docketing fees. The

Mahabir appellants explain that they filed their appeal in an

“abundance of caution,” but that, “after reviewing pertinent

judicial precedents,” they became aware that the order was not

a final decision and now wish to withdraw their appeal “to

conserve judicial resources.”

Telfair v. Tandy, C.A. No. 08-4663. In January 2008,

federal prisoner Tommie Telfair filed in the United States

District Court for the District of New Jersey an action pursuant

to 42 U.S.C. § 1983 and Bivens v. Six Unknown Fed. Narcotics

Agents, 403 U.S. 388 (1971), alleging that his constitutional

rights were violated. The District Court denied Telfair’s first
6

motion to proceed in forma pauperis (“IFP”) and

administratively closed his case. In March 2008, Telfair

submitted a second IFP application with an amended complaint.

He paid the full filing fee in April 2008. The District Court

granted his IFP application, directed the Clerk to reopen the

case, and reviewed the case pursuant to 28 U.S.C. §§ 1915(e)(2)

and 1915A. By order entered October 21, 2008, the District

Court dismissed the action in part and directed that the

complaint be served upon the remaining defendants.

Telfair has appealed from that order. The Clerk has

advised him that we may lack jurisdiction over the appeal under

Federal Rule of Civil Procedure 54(b). Telfair now requests a

waiver of the $455 filing and docketing fees based on his lack

of funds and his belief that he only had to pay a fee to

commence the action in the District Court and that no separate

fee was required for this appeal. Telfair has not filed the

affidavit and other forms that are required to proceed IFP on

appeal. 

II.

The courts of appeal are authorized to charge fees by 28

U.S.C. § 1913. The amounts of such fees are determined by the

Judicial Conference of the United States and set forth in the

Miscellaneous Fee Schedule which follows § 1913. Item one of

the schedule prescribes a fee of $450 “for docketing a case on

appeal or review or docketing any other proceeding.” An

additional fee of $5 is charged by the district court “upon the

filing of any . . . notice of appeal . . . .” 28 U.S.C. § 1917.

Accordingly, the fee for docketing an appeal is $455, which is

paid to the district court. As the name implies, the fee is for
7

docketing, or opening, the case. See FED. R. APP. P. 3(e) (An

appellant “must pay the district clerk all required fees” upon

filing a notice of appeal.). In addition to covering some of the

costs associated with opening a case, these fixed fees also serve

to deter the filing of frivolous appeals and unnecessary

“protective” appeals. See In re Anderson, 511 U.S. 364, 365-66

(1994) (noting that “filing fees and attorney’s fees . . . deter . .

. litigants from filing frivolous petitions”) (internal citation

omitted); Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir. 1996)

(stating that Congress’s objective in enacting the PLRA was to

“mak[e] all prisoners seeking to bring lawsuits or appeals feel

the deterrent effect created by liability for filing fees”). In light

of the purposes behind these fees, it is not surprising that the

Federal Rules of Appellate Procedure include no provision for

their return. 

We are not the first court to be confronted with requests

to return fees upon the voluntary dismissal of an appeal. At

least two of our sister circuits have published opinions

addressing the issue, and both have determined that voluntary

dismissal does not entitle the appellant to a refund of the filing

and docketing fees. See Williams v. Roberts, 116 F.3d 1126,

1127 (5th Cir. 1997) (Fees are “assessed for the privilege of

initiating an appeal, without regard to the subsequent disposition

of the matter.”); Goins v. Decaro, 241 F.3d 260, 261 (2d Cir.

2001) (“[F]ee-paying litigants have no opportunity to obtain a

refund of their filing fees in the event that they withdraw their

appeals.”). See also Thurman v. Gramley, 97 F.3d 185, 187 (7th

Cir. 1996) (overruled on other grounds by Walker v. O’Brien,

216 F.3d 626 (7th Cir. 2000)) (“A solvent litigant must pay the

filing and docketing fees for the privilege of initiating an appeal;

dismissal on jurisdictional grounds does not lead the court to
There is no reason to deny the motions to dismiss the 1

appeals, as the appellees will not be burdened by the dismissal

of these appeals. See In re Penn Cent. Transp. Co., 630 F.2d

183, 189-90 (3d Cir. 1980) (explaining standard for granting

motions for voluntary dismissal); FED. R. APP. P. 42(b). 

The Mahabir appellants indicate that, in addition to 2

requesting the return of their fees, they are withdrawing their

appeal to conserve judicial resources. This expression of

altruism aside, their withdrawal of the appeal at this stage does

not conserve judicial resources. As explained above, court

resources to which the fees are directed, i.e., opening the case,

have already been expended. We have also already expended

additional court resources to screen the appeal and to notify the

parties that we may not have jurisdiction to review the District

8

refund the appellant’s money.”). We conclude likewise. It is of

no consequence whether an appeal is voluntarily dismissed,

dismissed due to a jurisdictional defect, or dismissed on the

merits—appellants are not entitled to the return of their filing

and docketing fees. 

Porter, who proceeds pro se, and the Mahabir appellants,

who are represented by counsel, have moved to voluntarily

dismiss their appeals under Federal Rule of Appellate Procedure

42(b). Upon the filing of their appeals, they paid the required

filing and docketing fees and did not claim indigence. Their

belief that voluntary dismissal of their appeals entitles them to

the return of the filing and docketing fees betrays their

fundamental misunderstanding of the aforementioned purposes

of the fees. Accordingly, while we will grant Mahabir’s and

Porter’s motions to withdraw their appeals, we will deny their 1

requests for return of the filing and docketing fees they have

paid. 

2
Court’s order.

We note that the granting of IFP status exempts litigants 3

from filing fees only. It does not exempt litigants from the costs

of copying and filing documents; service of documents other

than the complaint; costs, 28 U.S.C. § 1915(f)(1); expert witness

fees, Boring v. Kozakiewicz, 833 F.2d 468 (3d Cir. 1987); or

sanctions. 

9

Appellant Telfair does not request the return of fees he

has paid; rather, he asks us to waive his not-yet-paid fees,

claiming that he cannot afford to pay them and that he believed

that he was only required to pay a fee to initiate his case in the

District Court. In civil cases, we have the authority to waive the

prepayment of filing fees if the appellant is indigent and the

PLRA does not apply. 28 U.S.C. § 1915(a). Telfair is a 3

prisoner whose appeal is governed by the PLRA. 28 U.S.C. §

1915(b). Although a prisoner may obtain IFP status under the

PLRA, this does not result in a waiver of the fees—it merely

allows the inmate to pay the fees in installments when there are

sufficient funds in his prison account. Id. Thus, even if Telfair

obtains IFP status, we have no authority to waive his fees under

the PLRA. Furthermore, despite Telfair’s belief, the PLRA

plainly requires a prisoner to pay the fees if he “brings a civil

action or files an appeal . . . .” 28 U.S.C. § 1915(b)(1)

(emphasis added). For these reasons, we will deny Telfair’s

motion for a fee waiver.

III.

Porter’s and the Mahabir appellants’ motions to

withdraw their appeals under Federal Rule of Appellate

Procedure 42(b) are granted. Their motions for the return of
We emphasize that, once the Court has granted a prisoner 4

leave to proceed IFP in an appeal governed by the PLRA, the

prisoner is obligated to pay the fees in full. 

10

their filing and docketing fees are denied. Telfair’s motion

for waiver of the filing and docketing fees is denied. If

Telfair wishes to proceed with his appeal, he must pay the

required fees or file a motion to proceed IFP within twentyone days of the date of this opinion. If Telfair does not pay

the fees or file a motion to proceed IFP his appeal will be

dismissed for failure to pay such fees. 3d Cir. L.A.R. 3.3 and

24.2 and L.A.R. Misc. 107.1 (2008). In accordance with this 4

opinion, the Clerk of this Court is authorized to deny future

motions to return or to waive appellate filing and docketing

fees.