                                                                                                                           Opinions of the United
2009 Decisions                                                                                                             States Court of Appeals
                                                                                                                              for the Third Circuit


4-16-2009

Powell v. Mahabir
Precedential or Non-Precedential: Precedential

Docket No. 09-1162




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Recommended Citation
"Powell v. Mahabir" (2009). 2009 Decisions. Paper 1437.
http://digitalcommons.law.villanova.edu/thirdcircuit_2009/1437


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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
 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, Roberty-
 Homicide, 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)

                           2
        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

                             3
                           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.



                               4
       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


                               5
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


                               6
docketing, or opening, the case. See F ED. R. A PP. 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


                                 7
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,1 we will deny their
requests for return of the filing and docketing fees they have
paid.2

   1
       There is no reason to deny the motions to dismiss the
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); F ED. R. A PP. P. 42(b).
   2
       The M ahabir appellants indicate that, in addition to
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
       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).3 Telfair is a
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


Court’s order.
  3
       We note that the granting of IFP status exempts litigants
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
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 twenty-
one 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).4 In accordance with this
opinion, the Clerk of this Court is authorized to deny future
motions to return or to waive appellate filing and docketing
fees.




  4
       We emphasize that, once the Court has granted a prisoner
leave to proceed IFP in an appeal governed by the PLRA, the
prisoner is obligated to pay the fees in full.

                              10
