Flowers v. Turbine Support Division

• Decision Date: 12 February 1975
• Docket Number: No. 73-3903,73-3903
• Citation: 507 F.2d 1242
• Parties: 10 Fair Empl.Prac.Cas. 682, 9 Empl. Prac. Dec. P 9956 Jeanette B. FLOWERS, Plaintiff-Appellant, v. TURBINE SUPPORT DIVISION et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1242

507 F.2d 1242

10 Fair Empl.Prac.Cas. 682, 9 Empl. Prac.

Dec. P 9956

Jeanette B. FLOWERS, Plaintiff-Appellant, v. TURBINE SUPPORT DIVISION et al., Defendants-Appellees.

No. 73-3903.

United States Court of Appeals, Fifth Circuit.

Feb. 12, 1975, Rehearing Denied March 27, 1975.

Bobby J. Nelson, James M. Simons, Austin, Tex., for plaintiff-appellant.

Doyle L. Coatney, John W. Davidson, San Antonio, Tex., for defendants-appellees.

Appeal from the United States District Court for the Western District of Texas.

Before GEWIN, AINSWORTH and GEE, Circuit Judges.

GEE, Circuit Judge:

On October 17, 1972, Appellant Flowers files suit ¹ against Appellee Turbine Support Division Chromalloy American Corporation (Turbine) alleging that she had been discriminated against and eventrally fired because of her sex, because of her association with minority groups at work, and in retaliation for her opposition to practices made unlawful by Title VII of the Civil Rights Act of 1964, 42 U.S.C. 2000e et seq. (the Act). As the suit progressed, Flowers proved to be less than the ideal plaintiff; three times show-cause orders had to be issued to goad her into complying with pre-trial orders of the court. Each order was, however, eventually complied with. About two months before the date eventually set for trial, Flowers filed an application for permission to proceed in forma pauperis (IFP). Six days before trial an order was issued denying the motion. Appellant filed a notice of appeal from this order. She also made an oral motion for continuance. This motion was denied. Flowers then unsuccessfully sought emergency relief in the form of a continuance from this Court and the Supreme Court. Appellant appeared for trial on September 24, 1973, the date set, and again sought a continuance-- this time in writing. When this request was denied she announced 'not ready.' Thereupon, the trial court dismissed her case with prejudice for want of prosecution. F.R.C.P. 41(b).

We are now called upon to decide (1) whether the trial court abused its discretion in dismissing Flowers' suit and (2) whether it erred in denying her application to proceed IFP.

Turbine has pressed upon us the novel proposition that Flowers announced 'not ready' in order to force a dismissal. This she did, according to Turbine, with the aim of disrupting the orderly procedure of the federal courts by forcing the issue of the earlier denial of her motion to proceed IFP-- which it views as an interlocutory order-- upon this Court without its first having been certified by the district court. Thus, Turbine accuses Flowers of purposely seeking dismissal to avoid 28 U.S.C. 1292(b). As Turbine sees it, 'There is only one issue in this case and that is whether parties to a lawsuit may circumvent the Federal Rules of Civil Procedure and appropriate Federal statutes to secure Interlocutory Appeal from the denial of her application to proceed in forma pauperis.' The problem with Turbine's framing of the issue and with the bulk of its argument is that denial of a motion to proceed IFP under 28 U.S.C. 1915 is appealable, without reference to 1292(b), as a final decision under 28 U.S.C. 1291. Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950); Kitchens v. Alderman, 376 F.2d 262 (5th Cir. 1967). Flowers was in the process of appealing this order in an orderly fashion when her case was dismissed.

Orders denying applications to proceed IFP are appealable as final decisions for reasons similar to those which prompted the Supreme Court to hold that the order in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) was appealable. An order denying IFP status finally decides an important issue which is collateral to the merits of the case. It is an order which is 'too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.' Cohen, supra, at 546, 69 S.Ct. at 1226. More importantly, it is an order the review of which cannot be deferred until the whole case is decided. Denial of IFP, if erroneous, tends to close the door of the courthouse to the true pauper, forcing him to forfeit his day in court. Such a person has little hope of successfully prosecuting his case to a traditional final judgment. It follows from this that a trial court judge acts at great risk of reversal when he puts a party who has appealed from an order denying him pauper status to trial in the interim. Should the party proceed to trial and lose, the decision on the merits must be reversed if the appellate court holds that IFP was erroneously denied and if the party's chances to prevail were prejudiced by the denial. If the party declines to proceed to trial and the court thereupon dismisses his suit for want of prosecution, a reversal of the denial of pauper status will mandate a reversal of the dismissal whenever it appears that denial of the status either prevented the party from proceeding to trial at all or seriously prejudiced his chances to win-- unless, of course, there were sufficient, independent grounds for the dismissal.

We have concluded that the court below erred in denying pauper status to Ms. Flowers. Admittedly, a trial court has wide discretion in denying an application to proceed IFP under 28 U.S.C. 1915. This is especially true, the rubric goes, in civil cases for damages, wherein the courts should grant the privilege sparingly. Weller v. Dickson, 314 F.2d 598 (9th Cir.), cert. denied, 375 U.S. 845, 84 S.Ct. 97, 11 L.Ed.2d 72 (1963). ² However, in denying such applications a court must not act arbitrarily. Nor may it deny the application on erroneous grounds. Trujillo v. United States, 492 F.2d 128 (5th Cir. 1974). In its order the district court stated that it was denying Flowers' application for two reasons. The first was that the application was not timely filed. The second was that Flowers' lawyers, to whom the court found she had assigned an interest in her cause of action, made no showing that they were paupers. These were not permissible reasons for denying IFP.

There is no requirement under 28 U.S.C. 1915 that an application to proceed IFP be filed at any particular time. The statute contemplates that a person not a pauper at the commencement of a suit may become one during or prior to its prosecution. In fact, since one may not legitimately make such an application until he becomes a pauper, his application may not be denied simply because he made an initial decision to attempt to pay his own way. ³

A lawyer who is working on a contingency fee basis in not required to certify that he is a pauper before his client may take edbantage of 28 U.S.C. 1915. Adkins v. E. I. Dupont de Nemours & Co., 335 U.S. 331, 69 S.Ct. 85, 93 L.Ed. 43 (1948). Assignment to one's lawyers of an interest in a cause of action in conjunction with a contingency fee arrangement is merely security for payment of that fee and does not raise the problems which purchase of a pauper's lawsuit by a wealthy person would. When the assugnment is to the lawyer to secure his fee the rationale of Adkins controls, and pauper status may not be denied on the basis of the wealth...