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Larson v. Saul

United States District Court, D. South Dakota, Southern Division

September 24, 2019

NEIL T. LARSON, Plaintiff,
v.
ANDREW M. SAUL, COMMISSIONER OF THE SOCIAL SECURITY ADMINISTRATION; Defendant.

          ORDER AS TO COMMISSIONER’S OBJECTIONS TO LARSON’S BILL OF COSTS DOCKET NO. 25

          VERONICA L. DUFFY UNITED STATES MAGISTRATE JUDGE

         INTRODUCTION

         This matter is before the court on the Commissioner’s objections to the awarding of costs to Mr. Larson, the prevailing party in this appeal of the Commissioner’s decision denying him Social Security disability benefits. See Docket No. 25. The parties have consented to this magistrate judge handling this matter pursuant to 28 U.S.C. § 636(c).

         FACTS

         The facts bearing on the Commissioner’s objection are as follows. Mr. Larson applied for Social Security disability benefits and the Commissioner in a final decision denied that application. Mr. Larson then appealed the Commissioner’s decision to this court. Upon filing his complaint in this matter to pursue his appeal, Mr. Larson filed an application to proceed in forma pauperis (“IFP”), alleging he was unable to prepay the court’s $350 filing fee, normally due in full at the time of filing a complaint. See 28 U.S.C. § 1914, Docket No. 3.

         In his motion, Mr. Larson told the court his monthly gross pay is $10 to $30, derived from giving neighbors rides to appointments. See Docket No. 2. He stated he had no other source of income and that his parents paid all his living expenses. Id. Mr. Larson stated he had no money in any bank accounts, he lived in subsidized housing, and he received government assistance for heating expenses and food. Id. He stated he owned a 1999 Buick Century automobile with 200, 000 miles on it, worth an estimated $1, 000. Id. He listed his debts as including medical and other bills he was unable to pay. Id. The court granted Mr. Larson permission to proceed without prepayment of the court’s filing fee. See Docket No. 5.

         After full briefing in this matter, the court granted Mr. Larson’s motion to reverse and remand this matter to the Commissioner, making him a “prevailing party” under 28 U.S.C. § 2412. Thereafter, he filed a bill of costs and a motion for an award of attorney’s fees pursuant to § 2412. See Docket No. 21 & 22. The sole cost Mr. Larson sought to recover was this court’s filing fee, which he requested the Commissioner pay directly to this court on his behalf.[1] See Docket No. 21.

         Thereafter, the Commissioner filed pleadings indicating it did not object to the award of attorney’s fees to Mr. Larson or the amount of those fees. See Docket No. 24. The Commissioner did object, however, to Mr. Larson’s request for costs. See Docket No. 25. The Commissioner’s objection is premised on Mr. Larson’s having been granted permission to proceed IFP and the provision found at 28 U.S.C. § 1915(f)(1). Id. See also Docket No. 28.

         Mr. Larson filed a response stating if the court waives his obligation to pay the filing fee in its entirety, he takes no position on the Commissioner’s objection. See Docket No. 29. If the court requires Mr. Larson to pay the filing fee, he requests the Commissioner be assessed the filing fee as a cost. Id. Mr. Larson cites no law at all in his response. Id.

         DISCUSSION

         A. Section 1915

         Section 1915 is the statute authorizing courts to grant in forma pauperis (“IFP”) status. Subsection (a)(1) of 28 U.S.C. § 1915 provides: “Subject to subsection (b), 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 or security therefore, by a person who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable to pay such fees or give security therefor. Such affidavit shall state the nature of the action, defense or appeal and affiant’s belief that the person is entitled to redress.” (emphasis added).

         Subsection (f)(1) of 28 U.S.C. § 1915 provides: “Judgment may be rendered for costs at the conclusion of the suit or action as in other proceedings, but the United States shall not be liable for any of the costs thus incurred.” It is this provision on which the Commissioner’s objection to paying the filing fee is based.

         Courts have examined the use of the word “prisoner” in subsection (a)(1) to determine if Congress intended for IFP status to be limited to prisoners. The unanimous consensus among reported appellate decisions is that the use of the word “prisoner” was a mere typographical error and that Congress intended to mean “person” instead of prisoner. Andrews v. Cervantes, 493 F.3d 1047, 1051 n.1 (9th Cir. 2007); Lister v. Dept. of Treasury, 408 F.3d 1309, 1312 (10th Cir. 2005); Martinez v. Kristi Kleaners, Inc., 364 F.3d 1305, 1306 n.1 (11th Cir. 2004); Haynes v. Scott, 116 F.3d 137, 139-40 (5th Cir. 1997); Floyd v. U.S. Postal Serv., 105 F.3d 274, 276 (6th Cir. 1997), superseded on other grounds by Fed. R. Ap. P. 24 as noted in Owens v. Keeling, 461 F.3d 763 (6th Cir. 2006). Thus, courts apply section 1915 to all cases where IFP status is sought, not just to prisoner cases.

         B. History of 28 U.S.C. §§ 1915 & 2412

         Reaching back into history, the court notes prior to 1940, 28 U.S.C. § 836 provided in connection with IFP cases that “[j]udgment may be rendered for costs at the conclusion of the suit as in other cases: Provided, That the United States shall not be liable for any of the costs thus incurred.” Section 836 was codified amidst several other statutes dealing with IFP status in the 1940 code.

         In 1948, Congress undertook the passage of a massive bill encompassing nearly all of what we now know to be Title 28 of the United States Code. The bill was entitled simply “Judicial Code and Judiciary.” The legislative history for the bill was so enormous it had to be published in an appendix separate from the regular volumes of United States Code Congressional and Administrative News. The House Committee report on the bill--which comprehensively explained the reason for each provision in the bill--was over 600 pages long. See H.R. Rep. 80-308 on H.R. 3214, a bill to revise, codify, and enact into law Title 28 of the United States Code, entitled “Judicial Code and Judiciary.”

         The House Committee report says in pertinent part regarding § 1915: “A provision in section 836 of this title 28, U.S.C., 1940 ed., that the United States should not be liable for costs was deleted as covered by section 2412 of this title.” See H.R. Rep. 80-308 at A161.

         As enacted in 1948, subsection (e) of § 1915 read as follows: “Judgment may be rendered for costs at the conclusion of the suit or action as in other cases and if the United States has paid the cost of a stenographic transcript for the prevailing party, the same shall be taxed in favor of the United States.” See Judiciary and Judicial Procedure, Pub. L. No. 80-773, ch. 123, § 1915(e), 62 Stat. 869, 955 (1948). This provision did not expressly prohibit costs being assessed against the ...


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