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No Refund or Waiver of Appellate Filing Fee

By Mark Wilson

In three consolidated cases, the Third Circuit Court of Appeals held that voluntary dismissal of appeals does not result in refunds of the Appellants’ $455 filing fees. The court also held that it has no authority to relieve prisoners from paying outstanding portions of fees under 28 USC §1915(b).

In the first two cases – Porter v. Dept of the Treasury, CA No. 07-3859, and Powell et al. v. Mahabir et al., CA No. 09-1162 – non-prisoner litigants appeal under Fed. R.App.P. 3(a). They subsequently voluntarily dismissed their appeals under Fed. R.App.P. 42(b) and sought refunds of the filing and docketing fees.

In the third appeal – Telfair v. Tandy, CA No. 08-4663 – a federal prisoner appealed the district court’s dismissal of his §1983 and Bivens action. Telfair proceeded in forma pauperis in the district court under 28 U.S.C. §§1915(e)(2) and 1915A of the Prison Litigation Reform Act (PLRA).

On October 21, 2008, the district court dismissed the action in part and Telfair appealed. Telfair moved for “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.”

The Third Circuit observed that “in addition to covering some of the costs associated with opening a case,” the $455 filing and docketing fees “also serve to deter the filing of frivolous appeals and unnecessary ‘protective’ appeals.” See, e.g., In re Anderson, 511 U.S. 364, 365-66 (1994); and Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir. 1996). As such, the court found that “it is not surprising that the Federal Rules of Appellate Procedure include no provision for their return.” It observed that at least two Sister Circuits had previously held “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), Goins v. Decaro, 241 F.3d 260, 261 (2d Cir. 2001); and Thurman v. Granley, 97 F.3d 185, 187 (7th Cr. 1996). It then joined those circuits, concluding that “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.” Therefore, the court denied the motions for the refund of those fees in Porter and Powell.

Turning to Telfair, the court noted that Appellant did “not request the return of fees he has paid; rather,” he sought waiver of “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.” The court rejected this argument, concluding that under the PLRA, the court does not have authority to waive his fees. “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.” See 28 U.S.C. §1915(b). Additionally, “the PLRA plainly requires a prisoner to pay the fees” on appeal. See 28 USC §1915(b)(1). For these reasons, the court denied Telfair’s motion for fee waiver.

See: Porter v. Department of the Treasury, 564 F.3d 176 (3d. Cir. 2009).

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Related legal case

Porter v. Dept of the Treasury