Schilling v. Louisiana Department of Transportation and Development

Filing 115

MEMORANDUM RULING denying 114 Motion for Leave to Appeal in forma pauperis and Directing Preparation of Transcript. Signed by Judge Shelly D. Dick on 1/5/2015. (SMG)

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

JUDY SCHILLING
CIVIL ACTION
VERSUS
LOUISIANA DEPARTMENT OF
TRANSPORTATION AND DEVELOPMENT

NO. 12-00661-SDD-SCR

MEMORANDUM RULING
Before the Court is Schilling’s Motion for Leave to Proceed on Appeal In Forma
Pauperis and Directing Preparation of Transcript.1 Rule 24(a)(1) of the Federal Rules of
Appellate Procedure requires any party “to a district-court action who desires to appeal
in forma pauperis [to] file a motion in the district court.

The party must attach an

affidavit that: (A) shows in the detail prescribed by Form 4 of the Appendix of Forms the
party’s inability to pay or to give security for fees and costs; (B) claims an entitlement to
redress; and (C) states the issues that the party intends to present on appeal.” 28
U.S.C. § 753(f) sets forth the criteria that Schilling must satisfy in order to obtain a
transcript at government expense. Specifically, the Court must certify that Schilling’s
appeal is not frivolous but presents a substantial question.
In this instance, the Court finds that Schilling has satisfied the three technical
requirements necessary to proceed in forma pauperis on appeal.2 Schilling’s affidavit
shows that she satisfies the economic eligibility criterion.3

1

Schilling claims she is

Rec. Doc. 114.
Fed. R. App. P. 24(a)(1)(italics added).
3
In her Application to Proceed in District Court Without Prepaying Fees or Costs, Schilling attested to the
fact that her monthly income totals $905.26 (disability payments), she has $135.00 in her two checking
accounts, $5.00 in her savings account, and her home is valued at $90,000.00. As for her monthly
2

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entitled to redress on the jury verdict and the Ruling on the Motion to Alter or Amend
Judgment, or, in the Alternative, Motion for New Trial.4 She further states that she
“intends to present the issue of whether the Defendant’s delay in engaging in the
interactive process and/or providing reasonable accommodations is a violation of the
Americans with Disabilities Act on appeal.”5
In addition to these technical requirements, the Court must also consider whether
Schilling’s appeal for in forma pauperis status is taken in good faith.6 The Fifth Circuit
has set forth the following standard that district courts must apply when considering a
motion for leave to appeal in forma pauperis:
Under 28 U.S.C. § 1915(a), a federal court may refuse to certify an appeal
for in forma pauperis status if it is not taken in good faith. See also
Fed.R.App.P. 24(a). “Good faith” is demonstrated when a party seeks
appellate review of any issue “not frivolous.” Coppedge v. United States,
369 U.S. 438, 82 S.Ct. 917, 8 L.Ed. 2d 21(1962). An investigation into the
in forma pauperis movant’s objective good faith, while necessitating a brief
inquiry into the merits of an appeal, does not require that probable
success be shown. The inquiry is limited to whether the appeal involves
“legal points arguable on their merits (and therefore not frivolous).” Anders
v. California, 386 U.S. 738, 87 S.Ct. 1396, 18 L.Ed.2d 493 (1967);
Woodall v. Foti, 648 F.2d 269, 271 (5th Cir. 1982).7
The issue Schilling intends to present on appeal is whether the DOTD’s delay in
engaging in the interactive process and/or providing reasonable accommodations is a
violation of the Americans with Disabilities Act (“ADA”). Schilling contends that the jury
instructions should have included an instruction reflecting this legal position. As the
Court explained its Ruling denying Schilling’s Motion to Alter or Amend Judgment or, in

expenses, they total $793.05 and Schilling further attested to spending $20,531.16 for past or future
expenditures for attorney’s fees related to her lawsuit. Rec. Doc. 114-3.
4
Rec. Doc. 114-1, p. 2.
5
Rec. Doc. 114-1, p. 2.
6
28 U.S.C. § 1915(a)(3).
7
Howard v. King, 707 F.2d 215, 219-20 (5th Cir. 1983)(italics added).
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the Alternative, Motion for New Trial, this legal principle, being derived from other
circuits and secondary sources, is non-binding on the Fifth Circuit.8 While there is some
persuasive support for the premise that, in some circumstances, an employer’s delay in
engaging in an interactive process and/or providing the requested accommodations
may support a finding of liability under the ADA, there is no legal support for the position
advocated by Schilling, which is that a “delay in engaging in the interactive process
and/or providing reasonable accommodations is [ipso facto] a violation of the Americans
with Disabilities Act on appeal.”9
Accordingly, the Court finds that the issue Schilling intends to present on appeal
lacks legal merit. Therefore, the Court hereby declines to certify Schilling’s appeal for in
forma pauperis status because it is not taken in good faith.
Based on the Court’s refusal to certify Schilling’s appeal for in forma pauperis
status, the Court hereby further denies Schilling’s request to obtain a transcript at
government expense, pursuant to 28 U.S.C. § 753(f).10

8

Rec. Doc. 112, p. 6.
Rec. Doc. 114-1, p. 2. To the contrary the Fifth Circuit has explained that “Nothing in the regulations or
the cases indicates to us that an employer must move with maximum speed to complete this process and
preempt any possible concerns. Instead, we believe that in an informal process the employer is entitled
to move at whatever pace he chooses as long as the ultimate problem—the employee’s performance of
her duties—is not truly imminent.” Loulseged v. Akzo Nobel Inc 178 F.3d 731, 737 (5th Cir. 1999).
10
28 U.S.C. § 753(f) states in pertinent part that “[f]ees for transcripts furnished in other
proceedingsJanuary 5, 2015 permitted to persons permitted to appeal in forma pauperis shall also be
paid by the United States if the trial judge … certifies that the appeal is not frivolous (but presents a
substantial question).” (italics added).
9

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For the foregoing reasons, Schilling’s Motion for Leave to Proceed on Appeal In
Forma Pauperis and Directing Preparation of Transcript is hereby DENIED.11
Signed in Baton Rouge, Louisiana the 5th day of January, 2015.

S

JUDGE SHELLY D. DICK
UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

11

Rec. Doc. 114.

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