Rodney A. Bryant v. United States

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
RODNEY A. BRYANT,
Plaintiff-Appellant
v.
UNITED STATES,
Defendant-Appellee
______________________
2015-5065
______________________
Appeal from the United States Court of Federal
Claims in No. 1:14-cv-00657-MCW, Judge Mary Ellen
Coster Williams.
______________________
Decided: October 14, 2015
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RODNEY A. BRYANT , Jamaica, NY, pro se.
P AUL ANDREW ALLULIS , Tax Division, United States
Department of Justice, Washington, DC, for defendant-
appellee. Also represented by ROBERT WILLIAM METZLER,
CAROLINE D. CIRAOLO .
______________________

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BRYANT v. UNITED STATES 2
Before P ROST , Chief Judge, WALLACH and T ARANTO,
Circuit Judges.
P ER CURIAM .
Appellant Rodney A. Bryant appeals the decision of
the United States Court of Federal Claims (“Claims
Court”) dismissing his action because he failed to pay the
requisite filing fee. Appellee’s App. 2. Prior to the dis-
missal, the Claims Court rejected Mr. Bryant’s request to
proceed in forma pauperis. Id. at 3. Because the Claims
Court did not abuse its discretion in reaching these con-
clusions, we affirm.
BACKGROUND
In May and June 2014, the United States Department
of Treasury’s Internal Revenue Service (“IRS”) issued
notices announcing that it would seek to collect delin-
quent federal income tax liabilities that Mr. Bryant owed
for the years 1998 to 2003, as well as civil penalties
imposed upon him for the years 2002 and 2004. Appel-
lant’s Informal Br. 5–6. Mr. Bryant altogether owed over
$200,000 in unpaid taxes and civil penalties. Id.
In July 2014, Mr. Bryant sued the IRS in the Claims
Court, arguing that the IRS wrongfully levied upon his
wages and financial accounts. Id. at 3–4. When Mr.
Bryant filed his complaint, he also filed a motion for leave
to proceed in forma pauperis, which if granted would
relieve him of paying the requisite $350 filing fee. Appel-
lee’s App. 10; see 28 U.S.C. § 1926(b) (2012) (explaining
that the Claims Court “may require advance payment of
fees by rule”); Claims Ct. R. 77.1(c)(3) (2008) (explaining
that parties must pay a filing fee “in advance” unless
granted leave to proceed in pauper status);
Claims Court Fees Schedule, available at http://www.usco
urts.gov/services-forms/fees/us-court-federal-claims-fee-
schedule (last visited Oct. 8, 2015) (providing filing fee of
$350 owed at the time Mr. Bryant filed his Complaint).

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BRYANT v. UNITED STATES 3
The Claims Court denied the motion the next day because
the record demonstrated that Mr. Bryant received a
monthly pension payment of $7,998.96 and, thus, he had
not shown good cause for the request. Appellee’s App. 3.
Some eighty-five days after the Claims Court denied
Mr. Bryant’s motion, the Government filed a motion to
dismiss the Complaint for failure to prosecute pursuant to
Claims Court Rule 41(b).1 Id. at 11. In relevant part, the
rule permits the Claims Court to dismiss an action if “the
plaintiff fails to prosecute or to comply with” its rules,
Claims Ct. R. 41(b), including the payment of the filing
fee, Claims Ct. R. 77.1(c)(3). Mr. Bryant did not respond
to the motion or pay the filing fee in the interim. The
Claims Court granted the Government’s motion and
entered judgment dismissing the action. Appellee’s App.
1–2.
1 In the alternative, the Government argued that
the Claims Court lacked subject matter jurisdiction over
Mr. Bryant’s action. Appellee’s App. 4. Whether a plain-
tiff properly instituted its action, such as by paying the
requisite fees, antecedes any question regarding a court’s
authority to hear the issues presented. See, e.g., Costello
v. United States, 365 U.S. 265, 285 (1961) (finding dismis-
sal appropriate when a plaintiff fails “to comply with a
precondition requisite to the Court’s going forward to
determine the merits of his substantive claim”); United
States v. Zucca, 351 U.S. 91, 99–100 (1956) (same); see
also Fed. Cir. R. 52(c) (explaining that in this court “[t]he
clerk is not required to docket any proceeding or perform
any other service until all fees due the clerk are paid
unless a party has been granted leave to proceed in forma
pauperis”). Because we affirm the Claims Court’s dismis-
sal for Mr. Bryant’s failure to prosecute, we need not
address that argument.

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BRYANT v. UNITED STATES 4
Mr. Bryant appeals. The court has jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(3).
D ISCUSSION
Mr. Bryant argues that the court should enter “judg-
ment in [his] favor” and order the “release [of his] proper-
ty.” Appellant’s Informal Br. 2. He makes no specific
argument regarding the Claims Court’s denial of his
request to proceed in forma pauperis or its dismissal of
his action. The court gives Mr. Bryant the same lenient
treatment typically accorded to pro se litigants and con-
strues his statement as a challenge to the Claims Court’s
denial of his request for pauper status and dismissal of
his case. See, e.g., Beriont v. GTA Labs., Inc., 535 F.
App’x 919, 926 n.2 (Fed. Cir. 2013) (unpublished).
The court reviews for an abuse of discretion the denial
of an in forma pauperis request, as well as the dismissal
an action pursuant to Claims Court Rule 41(b). Kadin
Corp. v. United States, 782 F.2d 175, 176 (Fed. Cir. 1986)
(discussing dismissal under Claims Ct. R. 41(b)); see also
Colida v. Panasonic Corp. of N. Am., 374 F. App’x 37, 38
(Fed. Cir. 2010) (unpublished) (citing Denton v. Hernan-
dez, 504 U.S. 25, 33–34 (1992); Adkins v. E.I. DuPont de
Nemours & Co., 335 U.S. 331, 337 (1948)) (discussing
denial of a request for pauper status). An abuse of discre-
tion occurs when a court “exercise[s] its discretion based
on an error of law or clearly erroneous fact finding.”
Qingdao Taifa Grp. v. United States, 581 F.3d 1375, 1379
(Fed. Cir. 2009) (internal quotation marks and citations
omitted).
The Claims Court did not abuse its discretion in deny-
ing Mr. Bryant’s request to proceed in forma pauperis.
“‘[P]roceeding in forma pauperis . . . is a privilege, not a
right.’” White v. Colorado, 157 F.3d 1226, 1233 (10th Cir.
1998) (brackets omitted) (quoting Rivera v. Allin, 144 F.3d
719, 724 (11th Cir. 1998)). A party may proceed in forma
pauperis if it “is unable to pay” fees in a “court of the

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BRYANT v. UNITED STATES 5
United States” or “give security therefor.” 28 U.S.C.
§ 1915(a)(1); see id. § 2503(d) (treating the Claims Court
as “a court of the United States” for purposes of § 1915).
The Claims Court found that Mr. Bryant’s pension paid
him roughly $8,000 per month, or $96,000 annually,
meaning that he possessed the financial means to pay the
$350 filing fee. Appellee’s App. 3. The record does not
indicate that he would have experienced undue financial
hardship in paying the fee. Cf. Foster v. Cuyahoga Dep’t
of Health & Human Servs., 21 F. App’x 239, 240 (6th Cir.
2001) (unpublished) (“Although pauper status does not
require absolute destitution, the question is whether the
court costs can be paid without undue hardship.”). Thus,
the Claims Court acted within its discretion in denying
his request.2 Cf. § 1915(a)(1).
The Claims Court also did not abuse its discretion
when it dismissed Mr. Bryant’s action. Mr. Bryant re-
ceived notice that he did not qualify for pauper status on
July 29, 2014. Appellee’s App. 3. Between the dates on
which Mr. Bryant received that notice and the Govern-
ment filed its motion to dismiss, Mr. Bryant did not seek
reconsideration of the Claims Court’s denial or supple-
ment his application to proceed in forma pauperis, nor did
he pay the fee. After the Government filed its motion to
dismiss, Mr. Bryant had a month to respond. Id. at 11.
Mr. Bryant did not avail himself of that opportunity, nor
did he pay the fee during that time. If a party fails to pay
the requisite filing fee, despite adequate notice and ample
opportunity to do so, the Claims Court acts within its
discretion when it dismisses the action, just as it did in
2 Notably, Mr. Bryant paid the $505 filing fee re-
quired to appeal his case to this court in March 2015, only
months after failing to pay the Claims Court fee. See
Bryant v. United States, No. 2015-5065, Docket No. 1 at 3
(Fed. Cir. Mar. 13, 2015).

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BRYANT v. UNITED STATES 6
this case. See, e.g., Brown v. United States, 88 Fed. Cl.
795, 798 (2009) (stating that dismissal is proper when a
party fails to pay a filing fee and does not qualify for
pauper status).
CONCLUSION
Accordingly, the decision of the United States Court of
Federal Claims is
AFFIRMED

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