Trujillo v. United States, 73-3537 Summary Calendar.

• Decision Date: 01 April 1974
• Docket Number: No. 73-3537 Summary Calendar.,73-3537 Summary Calendar.
• Citation: 492 F.2d 128
• Parties: Luciano TRUJILLO et al., Plaintiffs, Jose Antonio Ortiz, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees. Ruby Lee McELVEEN, by her parent Roy Lee McElveen, Plaintiff-Appellant, v. BOARD OF PUBLIC INSTRUCTION OF PALM BEACH COUNTY, FLORIDA, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

492 F.2d 128 (1974)

Luciano TRUJILLO et al., Plaintiffs, Jose Antonio Ortiz, Plaintiff-Appellant, v. UNITED STATES of America et al., Defendants-Appellees.

Ruby Lee McELVEEN, by her parent Roy Lee McElveen, Plaintiff-Appellant, v. BOARD OF PUBLIC INSTRUCTION OF PALM BEACH COUNTY, FLORIDA, et al., Defendants-Appellees.

No. 73-3537 Summary Calendar.^*

United States Court of Appeals, Fifth Circuit.

April 1, 1974.

Bruce S. Rogow, Miami, Fla., William S. Finger, Stephen J. Press, Thomas Montgomery, Belle Glade, Fla., for McElveen, and others.

William J. Manikas, Fla. Rural Legal Serv., Pompano Beach, Fla., for plaintiffs-appellants.

Michael E. Jackson, Michael Jenks, Palm Beach, Fla., for Board of Public Inst.

Robert W. Rust, U. S. Atty., Miami, Fla., Raymond Battochi, U. S. Dept. of Justice, Washington, D. C., for U. S. A.

Monroe A. Coogler, Jr., West Palm Beach, Fla., for Palm Beach County Sheriffs Off.

Daniel Dearing, Dept. of Legal Affairs, Civ. Div., Tallahassee, Fla., for State of Fla.

R. Wm. Rutter, Jr., Asst. County Atty., West Palm Beach, Fla., for Palm Beach County.

Raymond W. Gearey, Civ. Div., Tallahassee, Fla., Kathryn H. Baldwin, Dept. of Justice, Thomas G. Wilson, Washington, D. C., for defendants-appellees.

Stephen K. Johnson, Gainesville, Fla., Brian J. Sherr, Fla. Rural Legal Serv., Delray Beach, Fla., for other interested parties.

Before GEWIN, GODBOLD and CLARK, Circuit Judges.

GODBOLD, Circuit Judge:

The appellants in this consolidated appeal initiated suits in the United States District Court for the Southern District of Florida, and moved to proceed in forma pauperis. Their lawyers were supplied by Florida Rural Legal Services, Inc. (FRLS). In a preliminary hearing in the McElveen case, the District Court ascertained that FRLS received $515,000 in federal funding¹ to finance its fiscal year 1973 operations, of which its officers earmarked $7,000 for paying court costs. The District Judge stated that appellants' allegation of poverty was true and their causes not clearly lacking in merit. Nevertheless, he denied the IFP motions. Reciting that the IFP statute, 28 U.S.C. 1915(a),² accorded him discretion in the matter, he found cause for denial in the fact that "Congress, by funding an overall legal services program, has already provided for the payment of court costs . . . ." Disagreeing with that assessment of Congress' intention, we reverse.³

The District Court holding was grounded in the concern that granting IFP treatment would violate traditional notions of separation of powers, interfering with an intention of Congress expressed in the Equal Opportunity Act of 1964, 42 U.S.C. §§ 2701, 2809(a)(3), to preempt the IFP statute by providing a different method for defraying court costs in the case of persons represented by OEO-funded legal aid societies.⁴ We can find nothing in the Equal Opportunity Act of 1964 to suggest that Congress possessed the preemptive intent on which the District Court holding is based. The Act created

a "Legal Services" program to further the cause of justice among persons living in poverty by mobilizing the assistance of lawyers and legal institutions and by providing legal advice, legal representation, legal counseling, education in legal matters, and other appropriate legal services.

42 U.S.C. § 2809(a)(3). The list of specific services to be rendered does not include payment of court costs. Nor does the catchall "other appropriate legal services" mandate payment of costs. By tradition, clients in the United States pay their own court costs and do not look to their lawyers for subsidization. That tradition invests "other appropriate legal services" with an ordinary meaning which would exclude payment of court costs. We must presume that was Congress' intended meaning.

In sum, we hold that § 2809(a)(3) cannot bear the preemptive weight the District Court places on it. We stress that today's holding merely identifies one duty that 42 U.S.C. § 2809(a)(3) does not require of legal aid societies. We imply neither approval nor disapproval of voluntary allocation and disbursement by legal aid societies of federal money for payment of clients' court costs.

Reversed and remanded.

* Rule 18, 5 Cir.; See Isbell Enterprises, Inc. v. Citizens Casualty Co. of New York et al., 5 Cir., 1970, 431 F.2d 409.

1 Under the Economic Opportunity Act of 1964, 42 U.S.C. §§ 2701, 2809(a)(3), as amended, and appropriations pursuant thereto.

2 The portions of the IFP statute relevant to this appeal are as follows:

(a) Any court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor, by a person...