Vicki Wade v. Kilolo Kijakazi ( 2021 )

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
VICKI S. WADE, No. 20-35327
Plaintiff-Appellant,
D.C. No.
v. 6:18-cv-02157-
BR
KILOLO KIJAKAZI, Acting
Commissioner of Social Security,
Defendant-Appellee. OPINION
Appeal from the United States District Court
for the District of Oregon
Anna J. Brown, District Judge, Presiding
Argued and Submitted June 9, 2021
Portland, Oregon
Filed September 24, 2021
Before: Kim McLane Wardlaw, Richard C. Tallman, and
Andrew D. Hurwitz, Circuit Judges.
Per Curiam Opinion
2 WADE V. KIJAKAZI
SUMMARY *
Social Security / Costs
The panel denied a claimant’s request for printing costs
associated with her Social Security appeal, which was
recently resolved in claimant’s favor.
Federal Rule of Appellate Procedure 39(a)(3) taxes costs
against the appellee if the reviewing court reverses the
underlying judgment, but costs for or against the United
States will be assessed only if authorized by law. As a partial
waiver of sovereign immunity, the Equal Access to Justice
Act (“EAJA”) permits recovery of certain costs against the
United States, unless prohibited by statute, and EAJA fees
and costs provisions apply in Social Security appeals,
“[e]xcept as otherwise specifically provided by statute.”
28 U.S.C. § 2412(a)(1).
The panel held that the in forma pauperis (IFP) statute,
28 U.S.C. § 1915(d)(1), “otherwise specifically provide[s]”
with respect to costs taxed against the government, and a
party who proceeds IFP and prevails on appeal is not entitled
to recover taxable costs from the United States,
notwithstanding EAJA’s limited waiver. Section 1915(d)(1)
prohibits an award of costs for or against the United States
under Federal Rule of Appellate Procedure 39 in appeals
involving IFP litigants. The panel therefore denied
claimant’s requested costs.
*
This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.
WADE V. KIJAKAZI 3
COUNSEL
John E. Haapala Jr. (argued), Eugene, Oregon; Brent Wells,
Harder Wells Baron & Manning P.C., Eugene, Oregon; for
Plaintiff-Appellant.
Lars J. Nelson (argued), Assistant Regional Counsel;
Mathew W. Pile, Regional Chief Counsel, Seattle Region X;
Office of the General Counsel, Social Security
Administration, Seattle, Washington; Renata Gowie, Civil
Division Chief; United States Attorney’s Office, Seattle,
Washington; for Defendant-Appellee.
OPINION
PER CURIAM:
Vicki Wade seeks printing costs associated with her
Social Security appeal, which we recently resolved in her
favor. The Commissioner opposes Wade’s bill of costs
because of her in forma pauperis (IFP) status. This raises an
unanswered question in our circuit: Is a party who proceeds
IFP and prevails on appeal entitled to recover taxable costs
from the United States? The answer is no. We hold that
28 U.S.C. § 1915(f)(1) 1 precludes such an award to IFP
litigants. We therefore deny Wade’s requested costs.
1
“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.” 28 U.S.C. § 1915(f)(1) (emphasis
added).
4 WADE V. KIJAKAZI
I
Wade filed her claim for Social Security Disability
Insurance benefits and Supplemental Security Income in
2015. An administrative law judge ultimately denied
Wade’s claim in 2017, finding her not disabled. Following
an unsuccessful administrative appeal, Wade filed her
federal court complaint in 2018, challenging the
administrative decision. With her complaint, Wade also
applied for leave to proceed IFP. The district court granted
Wade’s IFP motion, finding she “is unable to afford the costs
of this action.”
In 2020, the district court affirmed the decision denying
benefits and entered judgment in the Commissioner’s favor.
Wade filed a timely notice of appeal and indicated that the
district court had granted the IFP fee waiver. “A party who
was permitted to proceed in forma pauperis in the district-
court action . . . may proceed on appeal in forma pauperis
without further authorization.” Fed. R. App. P. 24(a)(3).
Wade proceeded IFP with her appeal.
On June 16, 2021, we issued a memorandum decision,
concluding that the administrative law judge erred in
evaluating the record evidence and discounting Wade’s
subjective symptom testimony. Wade v. Saul, 850 F. App’x
568, 569–70 (9th Cir. 2021). Accordingly, we reversed the
district court’s order affirming the Commissioner’s denial of
benefits and remanded the claim for further administrative
review. Id. at 570.
Following our judgment, Wade submitted a bill of
appellate costs, seeking $169.65 from the United States for
copies of briefs and excerpts of record. The Commissioner
opposed an award of those costs because 28 U.S.C.
WADE V. KIJAKAZI 5
§ 1915(f)(1) prohibits an award of costs against the United
States to those litigants proceeding IFP.
II
Federal Rule of Appellate Procedure 39(a)(3) taxes costs
against the appellee if the reviewing court reverses the
underlying judgment. However, “[c]osts for or against the
United States, its agency, or officer will be assessed under
Rule 39(a) only if authorized by law.” Fed. R. App. P. 39(b)
(emphasis added).
As a partial waiver of sovereign immunity, the Equal
Access to Justice Act (EAJA) permits recovery of certain
costs against the United States, unless prohibited by another
statute. See 28 U.S.C. § 2412(a)(1). We have held that the
EAJA fees and costs provisions apply in Social Security
appeals. See Orn v. Astrue, 511 F.3d 1217, 1221 (9th Cir.
2008) (order). But any statute waiving sovereign immunity
must be construed strictly in favor of the United States. See
Hardisty v. Astrue, 592 F.3d 1072, 1077 (9th Cir. 2010). The
pertinent EAJA costs statute states:
Except as otherwise specifically provided by
statute, a judgment for costs, as enumerated
in section 1920 of this title, but not including
the fees and expenses of attorneys, may be
awarded to the prevailing party in any civil
action brought by or against the United States
or any agency or any official of the United
States acting in his or her official capacity in
any court having jurisdiction of such action.
A judgment for costs when taxed against the
United States shall, in an amount established
by statute, court rule, or order, be limited to
reimbursing in whole or in part the prevailing
6 WADE V. KIJAKAZI
party for the costs incurred by such party in
the litigation.
28 U.S.C. § 2412(a)(1) (emphasis added).
The IFP statute “otherwise specifically provide[s]” with
respect to costs taxed against the government. Section
1915(f)(1) clearly precludes an award of costs against the
United States where a court has granted a litigant IFP status,
notwithstanding the EAJA’s limited waiver. Other courts of
appeals have confirmed this interpretation.
The Tenth Circuit resolved this issue in a Social Security
case where the IFP appellant obtained a favorable decision
on appeal. See Chambers v. Barnhart, 355 F.3d 1261, 1263
(10th Cir. 2004) (per curiam). Considering sections 1915
and 2412 together, the court concluded that Rule 39(b)
precludes an award of costs against the United States in IFP
appeals. Id.Similarly, the Third Circuit in James v. Quinlan—upon
which Chambers relied—explained that Rule 39(b) qualifies
the general rule permitting costs to the successful litigant on
appeal. 886 F.2d 37, 39–40 (3d Cir. 1989) (“When the
United States government is involved, Rule 39(b) and
§ 1915 combine to modify the general approach to appellate
costs set out in Rule 39(a).”). In James, the government
sought costs under Rule 39(a) from an IFP appellant where
the court affirmed the underlying judgment. Id. at 38–39.
The court denied the government’s request and explained
that Rule 39(b) has two purposes: 1) protecting the United
States’ sovereign immunity from awards of appellate costs
unless specifically authorized by statute, and 2) precluding
the United States from seeking those costs as a matter of
fairness. Id. at 40; see Fed. R. App. P. 39(b) (“Costs for or
against the United States, its agency, or officer will be
WADE V. KIJAKAZI 7
assessed under Rule 39(a) only if authorized by law.”
(emphases added)). Examining the text of § 1915 and Rule
39, as well as the Advisory Committee’s notes, the court held
that § 1915 “compels the conclusion that Rule 39(b) does not
allow costs to be awarded either in favor of or against the
United States in [IFP] appeals.” James, 886 F.2d at 40.
The Second Circuit has also recognized the mutuality
enshrined in Rule 39(b). See Maida v. Callahan, 148 F.3d
190, 193 (2d Cir. 1998). In Maida, the Commissioner sought
costs from an IFP litigant who was unsuccessful in her Social
Security appeal. Id. at 191–92. The court discussed the
EAJA’s limited waiver of sovereign immunity, concluding
that while § 2412(a) applies to Social Security cases and
costs may therefore be awarded against the United States in
some circumstances, § 1915 preserves the United States’
sovereign immunity from costs where the potential recipient
has proceeded IFP. Id. at 192–93. The court held that under
Rule 39, “when the United States is a party to a proceeding,
no costs can be taxed in favor of or against an in forma
pauperis litigant.” Id. at 193.
Section 1915(f)(1) is clear in declaring that “the United
States shall not be liable for any of the costs thus incurred”
where the party who would otherwise be entitled is
proceeding IFP. Because those costs are not “authorized by
law,” Fed. R. App. P. 39(b), the statute triggers the rule’s
prohibition on awards of appellate costs “for or against the
United States.”
Well-supported by the statutory text—and with no
reason to create an unnecessary circuit split on this issue, see
United States v. Cuevas-Lopez, 934 F.3d 1056, 1067 (9th
Cir. 2019)—we now join our sister circuits and hold that
28 U.S.C. § 1915(f)(1) prohibits an award of costs for or
8 WADE V. KIJAKAZI
against the United States under Federal Rule of Appellate
Procedure 39 in appeals involving IFP litigants.
III
Wade proceeded with her appeal IFP. While we granted
judgment in her favor and sent her case back for further
development and explanation, the law does not permit
taxation of her appellate printing costs against the
Commissioner.
The request for taxation of her costs is DENIED.