335 U.S.

331
69 S.Ct. 85
93 L.Ed. 43

ADKINS
v.
E. I. DU PONT DE NEMOURS & CO., Inc.
No. 1.

Argued on Motion for Leave to Proceed In Forma Pauperis Oct. 18, 1948.
Decided Nov. 22, 1948.
Mr. John W. Porter, Jr., of Muskogee, Okl., for petitioner.
Mr. G. C. Spillers, of Tulsa, Okl., for respondent.
[Syllabus from page 332 intentionally omitted]
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, * * *'.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 respondent2 'under and pursuant to the Fair Labor Standards
Act of 1938 (Title 29, U.S.C.A. Secs. 201219) and Executive Order #9240 as
amended (Title 40 U.S.C.A. following Sec. 326 (note)) * * *.'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 Court of
Appeals for the Tenth Circuit. She also filed a motion that the appeal be
allowed in forma pauperis. Her 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 pauperis, but the motion was denied by the court. Apparently
denial was for two reasons: (1) She could not proceed in forma pauperis 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
pauperis 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.
4

Petitioner then filed an application for appeal in forma pauperis 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, Mrs. Adkins, 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 appeared; '* * * 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 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 pauperis 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 pauperis 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.' 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.
7

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. 68 S.Ct. 1340. The matter has now been submitted
on briefs and oral argument. The affidavits of poverty filed to proceed here in
forma pauperis are the same as the affidavits filed in the two courts below.

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, 63 S.Ct. 948, 87 L.Ed. 488.

First. 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 pauperis 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, 45, 35 S.Ct. 236, 237, 238, 59 L.Ed. 457. Rule 75(m) of our present
Rules of Civil Procedure, 28 U.S.C.A., reads as follows:
10

'APPEALS IN FORMA PAUPERIS. Upon leave to proceed in forma pauperis,

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.)

11

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 wilfully and stubbornly endeavors to saddle the public with wholly
uncalled-for expense. So here, the court ws 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, 8
Cir., 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, to require addition of
material necessary to enable the court fairly to decide the appeal questions
presented.4

12

Second. 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, 309, 43 S.Ct. 374, 375, 67 L.Ed. 670. 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
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.
13

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.

14

Third. 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 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. See 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.

15

Fourth. 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 pauperis 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 costs.

16

Fifth. 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
contract by reason of his legal services. We are aware that some district and
circuit courts of appeal have so construed the Act,5 and that some have even
adopted rules which impose this requirement on lawyers.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.7

17

Many states, apparently including Oklahoma where this case was tried,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.

18

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. 9 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 poverty.

19

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 obvious 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? 10

20

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, D.C., 57 F.2d 214, 216: '* * * 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 costs 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.'

21

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.

22

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.

23

The orders denying appeal in forma pauperis are vacated and the cause is
remanded to the District Court for further proceedings not inconsistent with this
opinion.

24

It is so ordered.

25

Vacated and remanded.

27 Stat. 252, as amended, 36 Stat. 866, 42 Stat. 666, 28 U.S.C. 832, 28

U.S.C.A. 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. 1915, 28 U.S.C.A.
1915(a to e).

Section 16(b) of the Fair Labor Standards Act, 52 Stat. 1069, 29 U.S.C.
216(b), 29 U.S.C.A. 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, 29 U.S.C.A. 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, supra. 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, 200, 201, 58 S.Ct. 507, 509, 82 L.Ed. 745; Hoiness v. United States,

335 U.S. 297, 69 S.Ct. 70. 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.
5

United States ex rel. Randolph v. Ross, 6 Cir., 298 F. 64, 33 A.L.R. 728; Bolt v.
Reynolds Metal Co., D.C., 42 F.Supp. 58; Esquibel v. Atchison, T. & S.F.R.
Co., D.C., 206 F. 863; Feil v. Wabash R. Co., C.C., 119 F. 490; Phillips v.
Louisville & N.R. Co., C.C., 153 F. 795; The Bella, D.C., 91 F. 540, 543; Boyle
v. Great Northern R. Co., C.C., 63 F. 539; Silvas v. Arizona Copper Co., D.C.,
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, 9 Cir., 47 F.2d 894, but see Deadrich v. United
States, 9 Cir., 67 F.2d 318.

Quittner v. Motion Picture Producers and Distributors of America, 2 Cir., 70

F.2d 331; United States ex rel. Payne v. Call, 5 Cir., 287 F. 520; Jacobs v.
North Louisiana & Gulf R. Co., D.C., 69 F.Supp. 5; Clark v. United States,
D.C., 57 F.2d 214; Evans v. Stivers Lumber Co., D.C., 2 F.R.D. 548.

See Okla.Stat. tit. 5, 11 (1941). See also Watkins v. Sedberry, 261 U.S. 571,
576, 43 S.Ct. 411, 412, 67 L.Ed. 802; Peck v. Heurich, 167 U.S. 624, 630, 17
S.Ct. 927, 929, 42 L.Ed. 302. But see, Radin, Contingent Fees in California, 28
Calif.L.Rev. 587, 589, 598 (1940).

Board of Com'rs of Clay County v. McGregor, 171 Ind. 634, 87 N.E. 1, 17

Ann.Cas. 333; County of Dane v. Smith, 13 Wis. 585, 80 Am.Dec. 754; Ryce
v. Mitchell County, 65 Iowa 447, 21 N.W. 771; State v. Hudson, 55 R.I. 141,
143, 179 A. 130, 131, 100 A.L.R. 313.

10

See Radin, Contingent Fees in California, supra at p. 589; United States ex rel.
Payne v. Call, 5 Cir., 287 F. 520, 522; Clark v. United States, D.C., 57 F.2d
214, 216.