United States District Court, D. South Dakota, Southern Division
NEIL T. LARSON, Plaintiff,
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
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. Â§ 636(c).
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.
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.
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. See
Docket No. 21.
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.
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.
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).
(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.
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.
History of 28 U.S.C. §§ 1915 & 2412
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.
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
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.
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 ...