Hector L. Huertas, on behalf of himself and all other similarly situated v. MARVEL & MALONEY, A Professional Corporation; MICHAEL J. MALONEY Hector L. Huertas

RESUBMIT CLD-280 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
No. 07-1382
HECTOR L. HUERTAS,
on behalf of himself and
all other similarly situated
v.
MARVEL & MALONEY,
A Professional Corporation;
MICHAEL J. MALONEY
Hector L. Huertas,
Appellant
On Appeal From the United States District Court
For the District of New Jersey
(D.C. Civ. No. 06-cv-06161)
District Judge: Honorable Renee Marie Bumb
Submitted on Motion to Proceed In Forma Pauperis and for Possible Summary Action
Under Third Circuit LAR 27.4 and I.O.P. 10.6
November 9, 2007
Before: RENDELL, SMITH and JORDAN, Circuit Judges
(Opinion Filed: November 26, 2007)
OPINION
PER CURIAM

-- 1 of 3 --

Hector L. Huertas wished to file a complaint in the District Court without paying
the filing fees. Accordingly, he submitted an application to proceed in forma pauperis.
In his application, he reported a monthly income of $1927.90 (Social Security benefits
and disability benefits from the Veterans Administration) and a balance of $952.60 in a
money market account. He did not report any expenses. The District Court denied
Huertas’s application, noting that he had available funds to pay the filing fees.
Huertas appeals. He has filed an application to appeal in forma pauperis. He
reports a similar monthly income and slightly higher account balance. Unlike in the
District Court, Huertas’s application includes a listing of his monthly expenses. Also, in
a supplemental filing in response to our request, Huertas provides a detailed accounting of
many of his expenses. His expenses are approximately equal to his monthly income.
We will grant Huertas’s application, but we will summarily affirm, resolving the
apparent contradiction in the process. Essentially, on appeal, Huertas met his burden to
show that he is not able to pay the fees, while, in the District Court, he did not.
We have jurisdiction over Heurtas’s appeal because the District Court’s order
denying leave to proceed in forma pauperis is a final, collateral order appealable under 28
U.S.C. § 1291. See Abdul-Akbar v. McKelvie, 239 F.3d 307, 311 (3d Cir. 2001). We
review the District Court’s order for abuse of discretion. See Jones v. Zimmerman, 752
F.2d 76, 78 (3d Cir. 1985).
The decision to grant in forma pauperis turns on whether an applicant is
“economically eligible” for such status. Sinwell v. Shapp, 536 F.2d 15, 19 (3d Cir. 1976)
(citation omitted). A person need not be “absolutely destitute” to proceed in forma

-- 2 of 3 --

pauperis, Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339 (1948); however,
an affiant must show the inability to pay the fees on appeal, see Walker v. People Express
Airlines, Inc., 886 F.2d 598, 601 (3d Cir. 1989).
The District Court did not abuse its discretion in denying Huertas in
forma pauperis status on the basis of his affidavit. In the District Court, Huertas
described his monthly income and an account balance. Unlike in his application to us
(and in his response to our order), he did not list any expenses or liabilities in his
application to the District Court. Given the information that Huertas provided, it cannot
be said that the District Court abused its discretion in concluding that Huertas had funds
available to pay the requisite fees. Accordingly, although we grant Huertas’s application
to proceed in forma pauperis on appeal, we will affirm the District Court’s order.

-- 3 of 3 --