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. 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 On Appeal from the United States District Court for the District of the Virgin Islands (D.C. Civil Action No. 05-cv-00083) District Judge: Honorable Raymond J. Finch.
The opinion of the court was delivered by: Smith, Circuit Judge.
Submitted Pursuant to Third Circuit LAR 27 and I.O.P. 10
Before: McKEE, RENDELL and SMITH, Circuit Judges
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).
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.
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 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.
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 docketing, or opening, the case. SeeFED. 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 ...