HEADNOTES

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COURT'S OPINION

RICHARD H. BENSON, Specially Assigned Justice:

     This comes before the court on the plaintiff's Motion for Proceeding in Forma Pauperis and Memorandum in Support, with attached First Statement of Issues on Appeal, and on the Plaintiff's Affidavit Accompanying Motion for Permission to Appeal in Forma Pauperis, all filed September 26, 2001. On October 2, 2001, the defendants filed their Motion for Enlargement of Time to Respond to Plaintiff's Motion to Proceed In Forma Pauperis. Good cause having been shown, the defendants' motion is granted, and the defendants' opposition, will thus be considered timely filed.

     Also before the court is Clark Lebehn's affidavit of indigency, filed August 23, 2001; the defendants' Opposition to Proceed on Appeal in Forma Pauperis, filed October 15, 2001; and the Plaintiff-Appellant's Reply to Defendants-Appellees' Opposition to Motion to Proceed on Appeal in Forma Pauperis, filed October 22, 2001. They have all been carefully considered. The plaintiff/appellant Clark Lebehn has met the requirements to proceed in forma pauperis. His motion is therefore granted. The reasons follow.

I.

     Judgment was entered in this case on July 25, 2001. Lebehn v. Mobil Oil Micronesia, Inc., 10 FSM Intrm. 348 (Pon. 2001). Clark Lebehn timely appealed. Lebehn has now moved to proceed on appeal in forma pauperis. Generally, only natural persons may proceed in forma pauperis. Deuterium Corp. v. United States, 21 Cl. Ct. 132, 136 (1990). Clark Lebehn is without question a natural person. In order for Lebehn to proceed in forma pauperis on appeal, he must file a motion in the court appealed from together with an affidavit showing his inability to pay fees and costs or give security, his belief that he is entitled to redress, and a statement of the issues he intends to present on appeal. FSM App. R. 24(a). Those items were included with the pending motion, and there was also an earlier filed affidavit of indigency.

     The person seeking to proceed in forma pauperis must be economically eligible, that is, he must be indigent. The defendants contend that Lebehn has not shown that he is indigent. The defendants contend that Lebehn has not complied with the Rule 24(a) requirement that he file "an affidavit, showing in the detail prescribed by Form 2 of the Appendix of Forms, the party's inability to pay fees and costs or to give security therefor." FSM App. R. 24(a). The court notes that there is currently no Form 2 attached to the Appellate Rules. If there were, it presumably would resemble the Form 4 (Affidavit to Accompany Motion for Leave to Appeal in Forma Pauperis) attached to the U.S. Federal Rules of Appellate Procedure current in 1991, which was when the present FSM Rules of Appellate Procedure (largely derived from the similar U.S. federal rules) were adopted.

     There are two Lebehn affidavits. The second one, which was filed with the in forma pauperis motion, contains twelve questions and answers. As such, it corresponds to the much more detailed, current U.S. Appellate Procedure Form 4, which was adopted in 1998. Since the current U.S. Form 4 is more detailed than the 1991 Form 4 that would have been the model for an FSM Appellate Form

[10 FSM Intrm. 518]

2 if there had been one, the court concludes that Lebehn has provided an affidavit showing his inability to pay fees and costs or to give security therefor in the detail required by Rule 24(a). Form 2's absence from the FSM Appellate Rules will not be a ground for denying an in forma pauperis motion. The court further concludes that the affidavit shows that Lebehn is indigent and is without any income or property.

II.

     The defendants contend that the motion to proceed in forma pauperis should be denied because Lebehn has not shown that his appeal is meritorious. But whether an appeal is meritorious is not the analysis to be used in assessing a request to proceed on appeal in forma pauperis.

     For an indigent litigant to proceed on appeal in forma pauperis, the appeal must be made in good faith and not be frivolous. FSM App. R. 24(a). These two requirements are related. "`Good faith' is demonstrated when a party seeks appellate review of any issue `not frivolous.'" Howard v. King, 707 F.2d 215, 220 (5th Cir. 1983) (citing Coppedge v. United States, 369 U.S. 438, 445, 82 S. Ct. 917, 921, 8 L. Ed. 2d 21, 28 (1962)). For an issue not to be frivolous, it does not have to be meritorious. Liles v. South Carolina Dep't of Corrections, 414 F.2d 612, 614 n.1 (4th Cir. 1969) (lack of good faith not shown by mere fact appeal lacks merit, but that the issues are so frivolous that the appeal would be dismissed in the case of a non-indigent appellant); Brown v. Booker, 622 F. Supp. 993, 994 (E.D. Va. 1985) (same). The issue only has to be colorable.

Jackson v. Dallas Police Dep't , 811 F.2d 260, 261 (5th Cir. 1986) (quoting Anders v. California, 386 U.S. 738, 744, 87 S. Ct. 1396, 1400, 18 L. Ed. 2d 493, 498 (1967) (citations omitted)). Raising nonfrivolous issues on appeal entitles an indigent to proceed in forma pauperis. Carson v. Polley, 689 F.2d 562, 586 (5th Cir. 1982).

     Lebehn's statement of issues on appeal lists 33 assignments of error. For the appeal to be in good faith and not frivolous, at least one or more of those 33 issues must be colorable or arguable on its merits. The court determines that the issues related to the initial exclusion of the defendants' expert witnesses and their testimony at trial two months later (assignments of error #18, 19, 20, 21, and 29) constitute legal points arguable on their merits and therefore are colorable issues. The court, therefore, need not determine if any of the other assignments of error are nonfrivolous, and must conclude that the appeal is not frivolous and is made in good faith. Lebehn is therefore entitled to proceed in forma pauperis on appeal.

III.

     The defendants also assert that Lebehn's private counsel "has a vested interest in the outcome of the litigation." The defendants apparently reason that Lebehn's counsel was hired on a contingent fee basis and that Lebehn should not be allowed to proceed in forma pauperis if he is represented by an attorney who expects to be paid out of any recovery should he be successful. Courts, however, cannot deny a motion to proceed in forma pauperis because the movant's attorney is employed on a contingent fee basis. Adkins v. E.I. Dupont de Nemours & Co., 335 U.S. 331, 340-44, 69 S. Ct. 85, 89-91, 93 L. Ed. 43, 49-51 (1948); Flowers v. Turbine Support Div., 507 F.2d 1242, 1245 (5th Cir.

[10 FSM Intrm. 519]

1975); Clark v. United States, 57 F.2d 214, 215 (W.D. Mo. 1932); Isrin v. Superior Court, 403 P.2d 728, 736 (Cal. 1965). Lebehn's counsel's contingent fee is not a ground to deny Lebehn in forma pauperis status.

IV.

     The defendants contend that Lebehn seeks to be relieved from the costs associated with preparing the transcript. The defendants assert that the appellate rules do not allow an in forma pauperis appellant to avoid the costs of preparing the transcript and reproducing the record on appeal.

     Rule 24(a) provides that "If the motion is granted [by the court appealed from], the party may proceed without further application to the FSM Supreme Court appellate division and without prepayment of fees and costs in either court or the giving of security therefor, except as provided in General Court Order 1985-7." FSM App. R. 24(a). General Court Order 1985-7 provides, in pertinent part, that when the Public Defender Office or Micronesian Legal Services Corporation represents an indigent party in an in forma pauperis proceeding, the transcript fee is reduced to $1.25 per page, to be paid by the public agency, and not by the party personally. FSM GCO 1985-7, § 4(a).

     Being allowed to proceed in forma pauperis only relieves an appellant from prepayment of fees and costs, not from ultimate liability for those costs. If an in forma pauperis litigant should prevail on appeal, that litigant may, as the prevailing party, be awarded costs against the non-prevailing parties, FSM App. R. 39, and in that way may be able to pay the full costs of the appeal. If the in forma pauperis litigant does not prevail on appeal, he may conceivably never be able to pay the costs.

     Lebehn refers to 6 F.S.M.C. 1014 as a possible source of payment for appellate costs. That statute provides that any court may authorize in forma pauperis proceedings, 6 F.S.M.C. 1014(1), and that in such cases transcript fees shall be paid by "the director of the Administrative Office, Trust Territory judiciary" out of the "funds appropriated for the operation of the judiciary," 6 F.S.M.C. 1014(5). The defendants contend, and Lebehn concedes it might be so, that this statutory provision applies only to the Trust Territory courts, not to the FSM Supreme Court. For this proposition the defendants rely on various cases which have held that other sections of chapter 10 of Title 6 of the FSM Code do not apply to the FSM Supreme Court. See FSM v. Kuranaga, 9 FSM Intrm. 584, 586 (Chk. 2000) and cases cited therein. But whether 6 F.S.M.C. 1014(5) applies to the FSM Supreme Court is not as much the parties' concern as it is the concern of the court reporters who prepare the transcripts. It is a matter to be resolved between the court reporters and the judicial branch whether the judiciary pays the costs for in forma pauperis litigants' transcripts. Rule 24(a) clearly provides that the in forma pauperis litigant is not required to prepay transcript costs, although if the in forma pauperis litigant is represented by the Public Defender or Micronesian Legal Services Corporation then that agency must prepay $1.25 per page. Lebehn therefore is not required to tender payment in order to receive the transcript he has ordered.

V.

     Lebehn has also asked that he not be required to reproduce any part of the record and that the appeal be heard on the original record. The parties correctly point out that this relief is provided for in Rule 24(c) of the U.S. Federal Rules of Appellate Procedure, but that the corresponding FSM Appellate Rule 24(c) is "vacant." This relief is thus not specifically authorized by our appellate rules. Lebehn is authorized to proceed in forma pauperis. This means that any reproduction of the record would be done without prepayment of the costs. This would be burdensome on the court staff at Palikir. Therefore, since the court does keep duplicate files, Lebehn's request to proceed on the original record and not to be required to reproduce any part of it is granted to the extent that the court can grant it.

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VI.

     Accordingly, Lebehn's motion to proceed on appeal in forma pauperis is granted. Lebehn is not required to prepay any appellate costs. Lebehn may also proceed on the original record without the necessity to reproduce any part of it.

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