U.S. Marshals Service v. Means

• Decision Date: 29 December 1983
• Docket Number: No. 82-2489,82-2489
• Parties: 14 Fed. R. Evid. Serv. 1194 UNITED STATES MARSHALS SERVICE, Appellant, v. William A. MEANS, Mathew King, a/k/a Noble Redman, and all other persons occupying the location called "Yellow Thunder Camp at Victoria Lake in the Black Hills National Forest", Appellees.
• Court: U.S. Court of Appeals — Eighth Circuit

Page 642

724 F.2d 642

14 Fed. R. Evid. Serv. 1194

UNITED STATES MARSHALS SERVICE, Appellant, v. William A. MEANS, Mathew King, a/k/a Noble Redman, and all

other persons occupying the location called

"Yellow Thunder Camp at Victoria Lake in

the Black Hills National

Forest", Appellees.

No. 82-2489.

United States Court of Appeals,

Eighth Circuit.

Submitted March 17, 1983.

Decided Dec. 29, 1983.

Larry B. Leventhal, Minneapolis, Minn., Bruce Ellison, Roger Finzel, Rapid City, S.D., for appellee.

Russell Means, Rapid City, S.D., pro se.

Philip N. Hogen, U.S. Atty., Sioux Falls, S.D., Reed Rasmussen, Asst. U.S. Atty., Rapid City, S.D., Carol E. Dinkins, Asst. Atty. Gen., Anthony C. Liotta, Deputy Asst. Atty. Gen., Peter R. Steenland, Jr., Nancy B. Firestone, Attys., Dept. of Justice, Washington, D.C., for appellant; Lawrence E. Fischer, Deputy Gen. Counsel, U.S. Marshals Service, McLean, Va., of counsel.

Before BRIGHT, JOHN R. GIBSON, Circuit Judges, and HANSON, Senior District Judge. ^*

JOHN R. GIBSON, Circuit Judge.

The significant question before us concerns the expenditure of federal funds for fees and expenses of witnesses subpoenaed by indigent civil litigants. The United States brought an action against some forty Sioux Indians and others (the appellees) living in the Yellow Thunder Camp, claiming that the lands were being illegally occupied. The district court ¹ found that the Government had brought a number of experts to testify, and that certain witnesses were necessary for appellees' defense to obviate dismissal for non-prosecution. It ordered the United States Marshals Service to serve the subpoenas and to pay for minimum fees and costs for the subpoenaed witnesses to appear. The United States Marshals Service now appeals from that order, arguing that neither the in forma pauperis statute, 28 U.S.C. Sec. 1915 (1976 & Supp. V 1981), nor the due process clause of the fifth amendment permits the district court to compel payment for such fees and expenses. Although we agree that Section 1915 does not provide generalized authority for government payment of a civil indigent's witness fees, we conclude that alternatives, by statute or rule, authorize payment of fees. We therefore remand this case to the district court to enter its order in accordance with this opinion.

The underlying controversy in the ongoing trial, now recessed pending the outcome of this appeal, concerns the existence of Yellow Thunder Camp, a small, largely American Indian community, located within the Black Hills National Forest. On April 22, 1981, application was submitted on behalf of Yellow Thunder Camp members and the Lakota Nation for a special use permit allowing them to establish a religious, cultural, and educational community in an 800-acre area of the Black Hills National Forest. The United States Forest Service denied the request on August 24, 1981, and ordered those within the Yellow Thunder Camp to leave the site by September 8, 1981. A timely administrative appeal was taken.

On September 9, 1981, the United States filed an action against the named principals of the Yellow Thunder Camp, contending that they illegally occupied the lands and seeking injunctive and declaratory relief. On September 15, the Camp principals brought a separate action against officials of the United States Forest Service, claiming authority to utilize the lands involved and further claiming that Forest Service officials had circumvented legally established procedures and criteria in denying its special use permit application. They too sought declaratory and injunctive relief.

On December 9, 1981, the district court consolidated both actions, United States v. Means, et al., Civ. No. 81-5131, and Means, et al. v. Mathers, et al., Civ. No. 81-5135, for trial. With the concurrence of the parties, the court also assumed jurisdiction over the pending administrative appeal and agreed to consider it within the consolidated cases.

The district court granted in forma pauperis status to appellees under 28 U.S.C. Sec. 1915 and stated at the outset of trial that it expected the United States Marshals Service to serve appellees' subpoenas and to pay fees and expenses for appellees' witnesses. On four occasions during the pretrial hearings, the United States Marshals Service, at the court's direction, had paid fees and costs for appellees' witnesses. It declined to do so, however, as to appellees' trial witnesses, claiming it lacked statutory authority.

On November 23, 1982, the district court, citing 28 U.S.C. Sec. 1915 and due process considerations, issued its order which directed "that the United States Marshals Service shall process and pay all witness fees and costs of Yellow Thunder witnesses" and denied the motion by the United States Marshals Service to quash the subpoenas. On November 24, 1982, the district court issued its order denying the motion for reconsideration submitted by the United States Marshals Service. It supplemented its order by incorporating a memorandum opinion on November 29, 1982.

The district court allowed the Government to conclude the presentation of its case, including testimony offered by a number of lay and expert witnesses. Thereafter the court recessed trial proceedings pending the outcome of this appeal.

I.

We must first consider the threshold issue of our appellate jurisdiction. Under 28 U.S.C. Sec. 1291 (1976), the courts of appeals are vested with "jurisdiction of appeals from all final decisions of the district courts of the United States except where a direct review may be had in the Supreme Court." Although the order granting witness fees to appellees is not a "final decision" in the sense that it disposes of the litigation, we must give that term a "practical rather than a technical construction." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949). Under the "collateral order" doctrine articulated by the Supreme Court in Cohen, this court has authority to consider an appeal of such an order if "the order ... conclusively determine[s] the disputed question, resolve[s] an important issue completely separate from the merits of the action, and [is] effectively unreviewable on appeal of a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2457, 57 L.Ed.2d 351 (1978); accord, Moses H. Cone Memorial Hospital v. Mercury Construction Corp., --- U.S. ----, 103 S.Ct. 927, 934, 74 L.Ed.2d 765, 777 (1983) (stay of action pending state court resolution of identical issue was appealable); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 375, 101 S.Ct. 669, 674, 66 L.Ed.2d 571 (1981) (order denying motion to disqualify was not appealable).

The district court's order satisfies the requirements of the collateral order doctrine. First, the order conclusively determines that the payment of witness fees by the government is authorized under the in forma pauperis statute and is essential for a fair trial. Second, the order presents a serious and unsettled question concerning the authorization of payment of a civil indigent's witness fees. Third, the validity of that order does not rest on a resolution of the merits of the main dispute. Fourth, review cannot await final judgment because, at that time, the United States Marshals Service, as a non-party to the main action, will have effectively lost the right to have the issue decided. United States v. Schiavo, 504 F.2d 1 (3d Cir.1974); see generally C. Wright, A. Miller, & E. Cooper, 15 Federal Practice and Procedure Sec. 3911, at 482-83 (1976). Furthermore, the order requires an immediate payment prior to the entry of final judgment. For these reasons, we assume jurisdiction to hear this appeal as an appeal from a collateral order, ² and now turn to the merits of the order.

II.

We must decide whether the district court has the authority to order the United States Marshals Service to pay fees and expenses for appellees' witnesses. The district court's order, and the briefs of the parties as well, have couched the issue broadly in terms of indigents' rights under the in forma pauperis statute, 28 U.S.C. Sec. 1915 (1976 & Supp. V 1981), and under the due process clause. The United States Marshals Service argues that such expenditure of public monies is not expressly authorized by Section 1915 and is not required by due process. Yellow Thunder Camp argues that Section 1915 implicitly confers authority upon the district court to order such payment. It further contends that the due process requirement of meaningful access to the courts mandates a court's discretionary power to order government payment of witness fees and costs for a party proceeding in forma pauperis. As we are presented with both statutory and constitutional grounds to support or deny the relief requested, we must examine the statutory claim before considering the constitutional question. Califano v. Yamasaki, 442 U.S. 682, 692, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979).

In passing upon the scope of Section 1915, we look first at its language, which, if unambiguous, is ordinarily to be regarded as conclusive in the absence of a clearly expressed legislative intent to the contrary. Dickerson v. New Banner Institute, Inc., --- U.S. ----, 103 S.Ct. 986, 990, 74 L.Ed.2d 845, 853 (1983). The plain language of 28 U.S.C. Sec. 1915 does not provide expressly for government payment of witness fees:

(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 who makes affidavit that he is unable to pay such costs or give security therefor ....

....

(c) The officers of the court shall issue and serve all process, and perform all duties in such cases. Witnesses shall attend as in other cases, and the same remedies shall be available as are provided for by law...