Appellant, Willie Harris, proceeded in forma pauperis in his appeal from a summary judgment in his § 1983 action. A panel of this court affirmed the district court’s dismissal on summary judgment.
See Harris v. Forsyth,
In an appeal that this court affirms, costs cannot be recovered form [sic] an appellant proceeding in forma pauperis.
On June 28, 1984, appellees filed a motion for reconsideration of their request for costs. The issue presented here is whether costs can be assessed pursuant to Fed.R. App.P. 39(a) against an unsuccessful appellant proceeding in forma pauperis.
No case has been found which has awarded costs under Rule 39(a) against an appellant proceeding in forma pauperis. At least one appellate court, however, has upheld a district court’s award of costs under Fed.R.Civ.P. 54(d) under the abuse of discretion standard of review.
See Flint v. Haynes,
The court reasoned that
[t]he use of the word “prepayment” in subsection (a) indicates that Congress did not intend to waive forever the payment of costs, but rather it intended to allow qualified litigants to proceed without having to advance the fees and costs associated with the litigation. By permitting the court to enter judgment for costs “as in other cases,” subsection (e) evinces a congressional intent that litigants may eventually be liable for costs. It is clear that section 1915 contemplates the postponement of fees and costs for litigants who are granted in forma pauperis status.
However, we disagree with appellees’ contention that costs
must
be assessed against Harris. The decision to enter judgment for costs is clearly discretionary. Indeed, the
Flint
court expressly acknowledged that “a court, consistent with the discretion vested in it by section 1915(e), may choose not to tax costs against an indigent.”
Having determined that the award of costs of appeal against an indigent is within the appellate court’s sound discretion, we must now articulate some standard to guide this exercise of discretion. In our view, an appellate court’s discretion to award costs against an indigent should not be limited to frivolous appeals. We reach this conclusion for two reasons. First, leave to proceed in forma pauperis on appeal will be denied if the appeal is not brought in good faith. 28 U.S.C. § 1915(a). Thus, if we were to award costs only in cases where the appeal was utterly lacking in merit or brought in bad faith, 1 our holding that costs may be taxed against indigents would be greatly undermined: only in those instances in which the court declined to certify that the appeal is not taken in good faith and the appeal in fact turned out to be frivolous would costs be recoverable. Second, as the Fourth Circuit explained,
when costs are assessed only in extreme or exceptional cases, those persons granted leave to proceed in forma pauperis have virtually “nothing to lose and everything to gain,” [] and the purpose of § 1915 — equal access for the poor and the rich — is distorted. Non-indigents who contemplate litigation are routinely forced to decide whether their claim is “worth it.” [ ] We see no reason to treat indigents differently in this respect.
Flint, supra,
Applying these principles to the instant case, we conclude that appellees’ motion to tax costs in the amount of $38 for printing ten copies of appellees’ brief at $.20 per page should be granted. Rule 39(c) states that the costs of all “necessary copies of briefs” shall be taxable. The question becomes, then, whether ten copies are “necessary” within the meaning of 39(c). Although Local Rule 22(e) requires that only seven copies of briefs be filed, 11th Cir. Rule 22(e), Local Rule 28 permits costs for up to 15 briefs to be taxed, 11th Cir. Rule 28. It would seem that, in addition to the seven copies that must be filed, appellees would need to keep some copies for themselves. Therefore, the cost of
Appellees’ motion to tax costs is GRANTED.
SO ORDERED.
Notes
.
Cf. Marks v. Calendine,