U.S. Marshals Service v. Means

Decision Date14 August 1984
Docket NumberNo. 82-2489,82-2489
Citation741 F.2d 1053
Parties, 16 Fed. R. Evid. Serv. 209 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.
CourtU.S. Court of Appeals — Eighth Circuit

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

Russell Means, pro se.

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

Before LAY, Chief Judge, HEANEY, BRIGHT, ROSS, McMILLIAN, ARNOLD JOHN R. GIBSON, FAGG and BOWMAN, Circuit Judges, en banc.

JOHN R. GIBSON, Circuit Judge.

We must decide whether the United States may be compelled to expend federal funds for fees and expenses of witnesses subpoenaed by indigent civil litigants in cases where the United States is a party. The United States brought an action against some forty individuals living in the Yellow Thunder Camp, claiming that they were illegally occupying land in the Black Hills National Forest. After the government presented its case at trial, the United States Marshals Service refused to subpoena the Yellow Thunder witnesses and to pay their fees and expenses. The district court ordered the Marshals Service to do so. The Marshals Service appealed from that order, arguing that neither 28 U.S.C. Sec. 1915 (1982) nor the due process clause authorized the service. After the decision by a panel of this Court approving payment of the fees, see United States Marshals Service v. Means, 724 F.2d 642 (8th Cir.1983), we granted rehearing en banc on the motion of the Marshals Service. We now conclude that the district court may order government advancement of such fees and expenses, and 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 the Yellow Thunder Camp, a small, largely American Indian community, situated in 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.

The United States filed an action against the principals of the Yellow Thunder Camp on September 9, 1981, seeking to eject them from allegedly illegally occupied lands. On September 15 the Yellow Thunder Camp principals brought a separate action against the United States Forest Service, claiming authority to remain there and further claiming that Forest Service officials had wrongfully denied them a use permit. The procedural history is further described in our panel opinion. 724 F.2d at 643-44.

After commencement of the actions, the Marshals Service served subpoenas upon and paid fees and costs for pretrial witnesses called by the Yellow Thunder Camp principals on four occasions. It declined to do so with respect to their trial witnesses, however, claiming that it lacked statutory authority. On November 23, 1982, the district court, citing 28 U.S.C. Sec. 1915 and due process considerations, denied the motion of the Marshals Service to quash the subpoenas and ordered it to serve process and pay all fees and costs of the Yellow Thunder witnesses. The government concluded the presentation of its case, including testimony offered by lay and expert witnesses, and the district court then recessed the trial pending the outcome of this appeal.

We adhere to our panel opinion ruling that we have jurisdiction of this appeal under the collateral order doctrine. 724 F.2d at 644-45. Furthermore, the government has conceded before the en banc Court that the Marshals Service is required by law to subpoena the Yellow Thunder witnesses; it could not do less. The authority of the district court to order the United States Marshals Service to pay fees and expenses for the Yellow Thunder witnesses is the sole issue we must decide. We will begin by examining 28 U.S.C. Sec. 1915 and other statutes and rules because "[a] court presented with both statutory and constitutional grounds to support the relief requested usually should pass on the statutory claim before considering the constitutional question." Califano v. Yamasaki 42 U.S. 682, 692, 99 S.Ct. 2545, 2553, 61 L.Ed.2d 176 (1979).


In determining whether 28 U.S.C. Sec. 1915 authorizes a district court to order government payment of an indigent's witness fees and expenses, the starting point for our analysis must be the plain language of the statute itself. See Kosak v. United States, --- U.S. ----, ----, 104 S.Ct. 1519, 1523, 79 L.Ed.2d 860 (1984); United States v. Weber Aircraft Corp., --- U.S. ----, ----, 104 S.Ct. 1488, 1492, 79 L.Ed.2d 814 (1984). If it is unambiguous, the language 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., 460 U.S. 103, 110, 103 S.Ct. 986, 990, 74 L.Ed.2d 845 (1983). Section 1915 provides in part:

(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 in other cases.

While the plain language of section 1915 expressly provides for service of process for an indigent's witnesses, it nowhere mentions payment of fees and expenses for such witnesses. Moreover, the legislative history of section 1915 does not address this subject. H.R.Rep. No. 308, 80th Cong., 1st Sess. A161 (1947), reprinted in 1B Reams & Haworth, Congress and the Courts: A Legislative History 1787-1977, at 1485. We cannot, in the absence of any clear statement to the contrary, infer congressional intent to have section 1915 cover witness fees and expenses.

The structure of section 1915 further fortifies the implication of its plain language that it does not authorize government payment of witness fees and expenses for indigent litigants. Congress enacted section 1915 as a whole in 1948, subsequently making only minor amendments. It is therefore appropriate to interpret section 1915 as a whole. Subsection (b) specifically provides for government payment of expenses for printing the record on appeal or preparing a transcript of proceedings. Subsection (d) specifically provides for the appointment of counsel where a litigant is unable to employ an attorney. In contrast to subsections (b) and (d), subsection (c) makes no provision for witness fees or expenses, stating only that "[w]itnesses shall attend as in other cases...." Indeed, what subsection (c) does specifically provide the indigent litigant is stated clearly in the first sentence: "The officers of the court shall issue and serve all process, and perform all duties in such cases."

Generally speaking, a legislative affirmative description implies denial of the non-described powers. Continental Casualty Co. v. United States, 314 U.S. 527, 533, 62 S.Ct. 393, 396, 86 L.Ed. 426 (1942); see also Andrus v. Glover Constr. Co., 446 U.S. 608, 616-17, 100 S.Ct. 1905, 1910-11, 64 L.Ed.2d 548 (1980) (where statute specifically enumerates certain exceptions, additional exceptions are not to be implied, absent a contrary legislative intent). Furthermore, where Congress uses particular language in one section of a statute but omits it in another section of the same Act, it is generally presumed that Congress has acted intentionally and purposefully in the disparate inclusion or exclusion. Russello v. United States, --- U.S. ----, ----, 104 S.Ct. 296, 299, 78 L.Ed.2d 17 (1983). We are convinced that the specific government funding provisions in section 1915 preclude this Court from inferring an additional and significant provision for witness fees and expenses.

We observed in our panel opinion that the district court relied on Morrow v. Igleburger, 584 F.2d 767, 772 n. 7 (6th Cir.1978) cert. denied, 439 U.S. 1118, 99 S.Ct. 1027, 59 L.Ed.2d 78 (1979), in determining that section 1915 covers witness fees, but that the Sixth Circuit later abandoned the Morrow footnote as dicta, Johnson v. Hubbard, 698 F.2d 286, 290 n. 4 (6th Cir.), cert. denied, --- U.S. ----, 104 S.Ct. 282, 78 L.Ed.2d 260 (1983). Johnson specifically held that section 1915(c) does not require government payment of witness fees and costs for an indigent inmate of a state mental hospital in his action under 42 U.S.C. Sec. 1983. While we do not completely adopt the rationale of the Sixth Circuit, we agree with its result. 1 We also agree with the Sixth Circuit's reliance upon United States v. MacCollom, 426 U.S. 317, 321, 96 S.Ct. 2086, 2089, 48 L.Ed.2d 666 (1976), in which the Supreme Court declared that "the expenditure of public funds [on behalf of an indigent litigant] is proper only when authorized by Congress" and with its observation that courts that have found such congressional authorization in section 1915...

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