1. Under the Act of July 20, 1892, 27 Stat. 252, as amended, 28
U.S.C. (1946 ed.) § 832 et seq.
(now 28 U.S.C. § 1915),
and Rule 75(m) of the Federal Rules of Civil Procedure, a federal
court is not without power to protect the public from having to pay
heavy costs incident to the inclusion of unnecessary matters in the
record in an in forma pauperis
appeal. P. 335 U. S.
(a) It may deny leave to appeal in forma pauperis
the applicant wrongfully persists in including in the record on
appeal masses of matter plainly irrelevant to the issues raised on
appeal. P. 335 U. S.
(b) Under Rule 75(m) of the Federal Rules of Civil Procedure, it
may save the costs of printing by providing for a typewritten
record. P. 335 U. S.
2. On a motion in a federal district court to allow an appeal
in forma pauperis,
claimants filed affidavits estimating
that the cost of printing the record would be $4,000 and stating
that each of them was unable to pay or give security for the
the court was justified in looking further to see
if the costs really should have been $4,000, and, if not, in
requiring affidavits made with an appreciation of the lesser amount
of expense. Pp. 335 U. S.
3. On a motion in a federal court for leave to appeal in
an affidavit is sufficient which states that
affiant cannot, because of poverty, "pay or give security for costs
. . . and still be able to provide" himself and dependents "with
the necessities of life." One need not be absolutely destitute to
enjoy the benefit of the in forma pauperis
335 U. S.
4. In a suit in a federal district court, one of several
claimants cannot be denied a right of appeal in forma
merely because other claimants will neither give
security for costs nor sign an affidavit of poverty. P.
335 U. S.
Page 335 U. S. 332
5. Counsel employed on a contingent fee basis to represent a
poor plaintiff in a federal district court need not file affidavits
showing that they are unable on account of poverty to pay or give
security for costs in order for their client to be allowed to
appeal in forma pauperis.
Pp. 335 U. S.
In a suit for overtime, pay under the Fair Labor Standards Act
and Executive Order No. 9240, as amended, the District Court and
the Court of Appeals denied leave to appeal in forma
Plaintiff petitioned this Court for a writ of
certiorari and moved for leave to proceed in forma
On June 1, 1948, this Court entered an order
assigning the motion for argument on October 18, 1948, and stating
that it desired
"to hear argument upon the questions presented by the motion for
leave to proceed in forma pauperis,
including the question
as to the validity of a contingent fee agreement in connection with
a suit brought pursuant to the Fair Labor Standards Act."
This Court now grants certiorari (p. 336), vacates the orders
denying appeal in forma pauperis,
and remands the case to
the District Court. P. 335 U. S.
Page 335 U. S. 333
MR. JUSTICE BLACK delivered the opinion of the Court.
The questions presented chiefly involve the scope and
application of the statute which authorizes a citizen to prosecute
or defend actions in federal courts
"without being required to prepay fees or costs or for the
printing of the record in the appellate court . . . upon filing in
said court a statement under oath in writing that, because of his
poverty, he is unable to pay the costs of said suit or action or of
such writ of error or appeal, or to give security for the same. . .
. [Footnote 1
This action was filed in the United States District Court for
the Northern District of Oklahoma by P. V. Adkins. Mr. Adkins died
while the litigation was pending, and his wife, having been
appointed administratrix of his estate, was substituted as
plaintiff. The original complaint claimed overtime compensation,
damages and attorneys' fees on behalf of Mr. Adkins and twelve
other employees of the respondent [Footnote 2
"under and pursuant to the Fair Labor Standards Act of 1938
(Title 29, U.S.C. Secs. 201-219) and Executive Order #9240 as
amended (Title 40 U.S.C. following Sec. 326). . . . [Footnote 3
From a dismissal of her complaint in the District Court and the
denial by that court of her motion to set the dismissal aside and
grant a new trial, petitioner filed in the District Court a motion
to appeal to the United States
Page 335 U. S. 334
Court of Appeals for the Tenth Circuit. She also filed a motion
that the appeal be allowed in forma pauperis.
affidavit in support of this motion stated that petitioner was a
widow 74 years of age; the estimated costs of the appeal record
would be approximately $4,000; all she had was a home, inherited
from her husband, appraised at $3,450; her only source of income
was rent from parts of her home, and, without such income, she
would not be able to purchase the necessities of life. No objection
appears to have been filed to her motion to appeal in forma
but the motion was denied by the court. Apparently,
denial was for two reasons: (1) she could not proceed in forma
where there were twelve other claimants involved who
had no affidavits of poverty; (2) the court assumed that
petitioner's lawyers were employed on a contingent fee basis, and
was of opinion that she therefore could not appeal in forma
unless the lawyers either prepaid the costs, gave
security for costs, or filed an affidavit of their poverty along
with petitioner and all other claimants.
Petitioner then filed an application for appeal in forma
in the United States Court of Appeals. This
application was denied. The denial, so the record indicates, was on
the ground that, to appeal in forma pauperis,
the twelve employees, and all the members of the law firm
representing her would have to make affidavits of poverty.
Petitioner then went back to the District Court. Ten of the
twelve employees filed affidavits, in each of which this statement
". . . because of my poverty, I am unable to pay or give
security for the costs ($4,000) of such appeal and still be able to
provide myself and my dependents with the necessities of life."
An affidavit with identical language was filed by one member of
the firm of lawyers representing petitioner. The affidavit
Page 335 U. S. 335
also stated that the firm's interest in all fees from this
litigation had been assigned to affiant. No affidavit of poverty
were filed by the other members of the firm. An affidavit was filed
for the firm, however, stating a belief that the claims were
meritorious, that appeal costs had been estimated at about $4,000,
and that the total liquid assets of the firm did not exceed $2,000.
One of the twelve claimants could not be located, and one refused
to sign an affidavit of poverty.
The district judge, for the second time, denied the motion to
permit appeal without security for costs. His grounds seem to have
been these. Two of the claimants had signed no affidavit of
poverty; unless all signed, there could be no in forma
appeal. The affidavits of petitioner, the ten
claimants, and the attorneys were held insufficient in that they
failed to show the precise financial condition of affiants,
"whether they were or were not without property." The judge was not
sure just what affiants would have to show as to property, but felt
that each should prove a complete inability to pay at least a
portion of the costs. All interested in the recovery, he thought,
including the lawyers,
"have at least got to chip in to the extent of their ability to
pay, and whatever they have, they have got to put in the pot for
the purpose of taking the appeal."
The judge was "inclined to believe, but not sure," that, before
Mrs. Adkins could be permitted to appeal in forma
she must mortgage her home and "chip in" what she
received on the mortgage loan. He construed all the affidavits as
showing no more than that it would constitute a hardship to pay or
give security for the payment of $4,000 to make the record. This
statement as to "hardship," he thought, did not meet the statutory
requirement for an affidavit of inability to pay or secure costs
due to "poverty."
Page 335 U. S. 336
Furthermore, the judge thought petitioner had designated more
for the record than was needed to decide the dismissal question
raised by the appeal. He therefore believed that a $4,000 record
was "wholly unnecessary." Since the judge believed he was without
power directly to limit the contents of the appellate record, he
felt "persuaded to be more technical and more strict" on the type
of in forma pauperis
affidavits he required.
The Court of Appeals thereafter denied a second motion of
petitioner to accept its appeal in forma pauperis.
Petitioner then applied to this Court for certiorari to review the
actions of the Court of Appeals and of the District Court in
denying petitioner leave to appeal in forma pauperis.
Petitioner further asked the court for leave to proceed here
without giving security for costs. We set the motion down for
argument. The matter has now been submitted on briefs and oral
argument. The affidavits of poverty filed to proceed here in
are the same as the affidavits filed in the two
If these affidavits are thought to be insufficient to support
her motion, the petitioner urges that we give directions concerning
additional requirements. While, for our purposes, the affidavits
would have been more acceptable had they merely followed the
language of the statute, our rules have provided no precise
requirements. But the only questions presented here relate to the
sufficiency of these affidavits in the two courts below. And, to
reach these questions, which are important, we must either accept
the affidavits as sufficient or delay final consideration of the
case. We accept the affidavits, grant the petition for certiorari,
and, the case having been fully argued, we proceed to pass on the
questions presented so far as necessary. See Steffler v. United
States, 319 U. S. 38
Page 335 U. S. 337
We do not think the court was without power to
protect the public from having to pay heavy costs incident to the
inclusion of "wholly unnecessary" matters in an in forma
appeal. Sections 1 and 4 of the statutes provide that
a court may exercise a limited judicial discretion in the grant or
denial of the right, and this Court has so held. Kinney v.
Plymouth Rock Squab Co., 236 U. S. 43
236 U. S. 45
Rule 75(m) of our present Rules of Civil Procedure reads as
"APPEALS IN FORMA PAUPERIS. Upon leave to proceed in forma
the district court may by order specify some
different and more economical manner by which the record on appeal
may be prepared and settled, to the end that the appellant may be
enabled to present his case to the appellate court."
329 U.S. 870.
We know of few more appropriate occasions for use of a court's
discretion than one in which a litigant, asking that the public pay
costs of his litigation, either carelessly or willfully and
stubbornly endeavors to saddle the public with wholly uncalled-for
expense. So here, the court was not required to grant the
petitioner's motion if she wrongfully persisted in including in the
appeal record masses of matter plainly irrelevant to the issues
raised on appeal. See Estabrook v. King,
119 F.2d 607,
610. And, of course, under Rule 75(m), the court may save the costs
of printing by providing for a typewritten record. If exercise of
discretion by a district court should result in an unfair and
incomplete record to a litigant's injury, the court's error could
be remedied. Its action would be subject to review by the appellate
court. Moreover, if, in obedience to court order, a party should
agree to a record inadequate for appellate court purposes, that
court would have power, upon motion or sua sponte,
Page 335 U. S. 338
to require addition of material necessary to enable the court
fairly to decide the appeal questions presented. [Footnote 4
The statute allowing in forma pauperis
appeals provides language appropriate for incorporation in an
affidavit. One who makes this affidavit exposes himself "to the
pains of perjury in a case of bad faith." Pothier v.
Rodman, 261 U. S. 307
261 U. S. 309
This constitutes a sanction important in protection of the public
against a false or fraudulent invocation of the statute's benefits.
Furthermore, the statute provides other sanctions to protect
against false affidavits. Section 4 authorizes a court to dismiss
actions brought on affidavit of poverty "if it be made to appear
that the allegation of poverty is untrue." And § 5 provides another
safeguard against loss
Page 335 U. S. 339
by the Government due to false affidavits in that a court is
permitted, in its discretion, to render judgment for costs "at the
conclusion of the suit as in other cases." Consequently, where the
affidavits are written in the language of the statute, it would
seem that they should ordinarily be accepted for trial purposes,
particularly where unquestioned and where the judge does not
perceive a flagrant misrepresentation.
Here, the affidavits were not couched in the language of the
statute. They went outside that language. Estimating that the costs
would be $4,000, each affidavit stated that the affiant could not
pay or secure $4,000. In other words, the affidavits here tied
inability to pay to a fixed cost of $4,000. Under these
circumstances, we think the court was justified in looking further
to see if the cost really should have been $4,000, and, if not, the
judge was right in requiring affidavits made with an appreciation
by affiants of the lesser amount of expense to which they might be
subjected by the appeal.
We cannot agree with the court below that one
must be absolutely destitute to enjoy the benefit of the statute.
We think an affidavit is sufficient which states that one cannot
because of his poverty "pay or give security for the costs . . .
and still be able to provide" himself and dependents "with the
necessities of life." To say that no persons are entitled to the
statute's benefits until they have sworn to contribute to payment
of costs, the last dollar they have or can get, and thus make
themselves and their dependents wholly destitute, would be to
construe the statute in a way that would throw its beneficiaries
into the category of public charges. The public would not be
profited if relieved of paying costs of a particular litigation
only to have imposed on it the expense of supporting the person
thereby made an object of public support. Nor does the result seem
more desirable if the
Page 335 U. S. 340
effect of this statutory interpretation is to force a litigant
to abandon what may be a meritorious claim in order to spare
himself complete destitution. We think a construction of the
statute achieving such consequences is an inadmissible one.
cases collected in 6 A.L.R. 1281-1287 for a discussion
as to whether a showing of complete destitution should be made
under this and similar statutes.
We do not think that this petitioner can be
denied a right of appeal under the statute merely because other
claimants will neither give security for costs nor sign an
affidavit of poverty. This case illustrates that such a restrictive
interpretation of this statute might wholly deprive one of several
litigants of a right of appeal, even though he had a meritorious
case and even though his poverty made it impossible for him to pay
or give security for costs. Such a deprivation would frustrate the
basic purpose of the statute. This does not mean that one of
several claimants financially able but unwilling to pay his
proportionate part of the costs could demand the benefits of an
appeal perfected by another claimant under the in forma
statute. But it does mean in this case that the
petitioner, upon making the required affidavit of poverty, was
entitled to appellate review of the issues the district court
decided against her without regard to whether other claimants filed
an affidavit of poverty or paid or secured their fair part of the
Petitioner's appeal under the statute was denied
in part because her attorneys, thought by the District Court to
have been employed on a contingent fee basis, had not shown to the
court's satisfaction that they were unable on account of poverty to
pay or give security for costs. We think the statute imposes no
such burden on a lawyer who is to share in the recovery through
Page 335 U. S. 341
by reason of his legal services. We are aware that some district
and circuit courts of appeal have so construed the Act, [Footnote 5
] and that some have even
adopted rules which impose this requirement on lawyers. [Footnote 6
] Other district and circuit
courts of appeal have declined to interpret the statute as imposing
such a burden on lawyers who represent litigants too poor to pay or
secure the costs. [Footnote
Many states, apparently including Oklahoma, where this case was
tried, [Footnote 8
] make it
illegal for lawyers to sign a bond to secure costs for their
clients in any civil or criminal action. It would have been an
innovation had Congress in this statute expressly permitted lawyers
trying cases in federal courts to contract with their clients to
pay or secure costs in their clients' cases. But it would have been
a surprising legislative innovation for Congress to command that
lawyers pay or secure such costs. That Congress did not do this
seems to be strongly indicated by the basic statute itself.
Page 335 U. S. 342
Section 1 of that statute is intended to guarantee that no
citizen shall be denied an opportunity to commence, prosecute, or
defend an action, civil or criminal, "in any court of the United
States" solely because his poverty makes it impossible for him to
pay or secure the costs. Not content with this safeguard for the
poor in federal courts, Congress, in § 4 of the Act, provided that
"the court may request any attorney of the court to represent such
poor person if it deems the cause worthy of a trial. . . ."
Certainly a lawyer appointed under § 4 could not be required to pay
the costs of an appeal. Nor could such an appointed lawyer have a
burden of this kind cast upon him if Congress had required payment
of a fee for appointed counsel in an amount fixed as reasonable by
the court, a requirement that some state laws have provided.
] Yet such a
"reasonable fee" fixed by a court would be a "contingent fee,"
should we accept respondent's argument in this case. For respondent
contends that, because the Fair Labor Standards Act authorizes a
court to fix a reasonable fee for attorneys prosecuting overtime
claims for employees, this petitioner's lawyers are on a contingent
fee basis. They therefore, according to respondent, have a
financial interest in the recovery. Consequently, respondent
argues, petitioner must abandon her appeal and her claim unless
these lawyers pay costs, secure them, or make affidavits of
No proof is needed that imposition of such onerous burdens on
employees' lawyers would put serious obstacles in the way of
employees obtaining the kind of legal representation Congress
intended to provide for them in the Fair Labor Standards Act. And
since § 4 of the in forma pauperis
statute was plainly
intended to assure legal representation to the poor, it is also
Page 335 U. S. 343
that the purpose of that Act could be frustrated in part by
construing the statute as imposing a guarantee of appeal costs on
all lawyers employed to represent the poor on a contingent basis.
For, if a person is too poor to pay the costs of a suit, sometimes
very small in amount, how can it be imagined that he could possibly
pay a fair fee except from the recovery he obtains? [Footnote 10
The statute here under consideration is not susceptible of a
construction that would impose more burdens on lawyers employed by
litigants unable to pay fees except on a contingent basis than the
burdens imposed on lawyers for those litigants who are able to
employ counsel by the year or by payment of straight noncontingent
fees. Section 3 of the statute specifically states that litigants
who make affidavits of poverty shall be entitled to the same court
processes, have the same right to the attendance of witnesses, and
the same remedies as are provided by law in other cases. And, as
pointed out, § 4 of the statute makes it abundantly clear that poor
litigants shall have the same opportunity to be represented by
counsel as litigants in more fortunate financial circumstances. The
statutory construction urged by respondent here would result in
restricting the opportunities of the poor litigant in getting a
lawyer who would follow his case through the appellate courts. For,
as was said by the District Court in Clark v. United
States, 57 F.2d
". . . The same poverty that compels a litigant to avail himself
of this beneficent statute makes it impossible for him to hire
counsel. He can procure counsel only by agreeing that, out of the
proceeds of his case, if there are proceeds, counsel shall be
compensated. . . . In practical effect, he [a poor litigant] is
denied counsel if his counsel must either himself guarantee the
Page 335 U. S. 344
or file an affidavit that he also is penniless. The statute was
intended for the benefit of those too poor to pay or give security
for costs, and it was not intended that they should be compelled to
employ only paupers to represent them."
It was error to deny petitioner's motion for appeal under the
statute on the ground that her lawyers had not made satisfactory
affidavits of poverty. The statute requires no affidavit at all
from them as a condition of appeal.
What we have said makes it unnecessary for us to pass on the
contention of respondent that an agreement for a contingent fee
payable out of an employee's recovery to prosecute claims under the
Fair Labor Standards Act is invalid.
The orders denying appeal in forma pauperis
and the cause is remanded to the District Court for further
proceedings not inconsistent with this opinion.
It is so ordered.
27 Stat. 252, as amended, 36 Stat. 866, 42 Stat. 666, 28 U.S.C.
§ 832. The substance of § § 1 to 5 of the original statute as
amended has now been incorporated in §§ (a) to (e) of 28 U.S.C. §
Section 16(b) of the Fair Labor Standards Act, 52 Stat. 1069, 29
U.S.C. § 216(b), authorized employees' suits by agents. Here, the
agent was acting "for a consideration contingent upon recovery." An
amendment of this section, the Portal-to-Portal Act, 61 Stat. 84,
29 U.S.C.Supp. I, §§ 251-252, limited the circumstances under which
such representative actions could be maintained.
Executive Order No. 9240, 7 Fed.Reg. 7159 (1942), as amended, 7
Fed.Reg. 7419 (1942).
We do not mean to indicate that the issues sought to be raised
by this petitioner on her appeal could have been properly presented
to the Court of Appeals with nothing other than the very limited
record the trial court apparently thought would be adequate. The
case was dismissed because the District Court thought it had been
deprived of jurisdiction by the Portal-to-Portal Act,
This Act purports to deprive federal courts of
jurisdiction to enforce payment of overtime wages based on any
activity except one compensable by either "(1) an express provision
of a written or nonwritten contract . . . or (2) a custom or
practice in effect at the time of such activity," at the place of
employment, and not inconsistent with a written or nonwritten
contract governing such employment. Petitioner had contended that
examination by the court of the entire record including evidence
already taken by a special master would show that employees' claims
for compensation were supported by express contracts or by custom.
He contended that the Portal-to-Portal Act was therefore
inapplicable under the facts of this case, and that, consequently,
the dismissal under that Act was erroneous. Petitioner's
application to amend her complaint to conform to the evidence was
denied by the court. Cf. Maty v. Grasselli Chemical Co.,
303 U. S. 197
303 U. S.
-201; Hoiness v. United States, 335 U.
. It would appear that the petitioner was entitled
to have a record that was not so limited as to deprive the Court of
Appeals of an opportunity to review these issues she raised.
United States ex rel. Randolph v. Ross,
298 F. 64;
Bolt v. Reynolds Metal Co.,
42 F. Supp. 58; Esquibel
v. Atchison, T. & S.F. R. Co.,
206 F. 863; Feil v.
Wabash R. Co.,
119 F. 490; Phillips v. Louisville & N.
153 F. 795; The Bella,
91 F. 540, 543;
Boyle v. Great Northern R. Co.,
63 F. 539; Silvas v.
Arizona Copper Co.,
213 F. 504, 507, 508.
Rule 26(1), Rules of United States Court of Appeals for the
Third Circuit; Rule 18(2), Rules of United States Court of Appeals
for the Sixth Circuit; Chetkovich v. United States,
F.2d 894, but see Deadrich v. United States,
Quittner v. Motion Picture Producers and Distributors of
70 F.2d 331; United States ex rel. Payne v.
287 F. 520; Jacobs v. North Louisiana & Gulf R.
69 F. Supp. 5; Clark v. United
States, 57 F.2d
; Evans v. Stivers Lumber Co.,
2 F.R.D. 548.
Okla.Stat. tit. 5, § 11 (1941). See also
Watkins v. Sedberry, 261 U. S. 571
261 U. S. 576
Peck v. Heurich, 167 U. S. 624
167 U. S. 630
Radin, Contingent Fees in California, 28
Calif.L.Rev. 587, 589, 598 (1940).
Board of Comm'rs of Clay County v. McGregor,
634, 87 N.E. 1; County of Dane v. Smith,
13 Wis. 585;
Ryce v. Mitchell County,
65 Iowa 447, 21 N.W. 771;
State v. Hudson,
55 R.I. 141, 143, 179 A. 130, 131.
Radin, Contingent Fees in California,
at p. 589; United States ex rel. Payne v.
287 F. 520, 522; Clark v. United
States, 57 F.2d