Billy Grisso v. Kenneth Apfel , 22 F. App'x 656 ( 2001 )

United States Court of Appeals
FOR THE EIGHTH CIRCUIT
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No. 01-1872
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Billy Grisso, *
*
Appellant, *
*
v. *
*
Larry G. Massanari, Acting * Appeal from the United States
Commissioner of the Social Security * District Court for the
Administration; Paul H. O’Neill, * Eastern District of Missouri
Secretary of U.S. Treasury; *
John Ashcroft, Attorney General of * [UNPUBLISHED]
the United States, *
*
1
Appellees. *
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Submitted: September 4, 2001
Filed: November 13, 2001
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Before McMILLIAN, BOWMAN, and MORRIS SHEPPARD ARNOLD, Circuit
Judges.
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1
Larry G. Massanari has been appointed to serve as Acting Commissioner of
the Social Security Administration; Paul H. O’Neill has been appointed to serve as
Secretary of the U.S. Treasury; and John Ashcroft has been appointed to serve as
Attorney General, Department of Justice. All three have been substituted as appellees
pursuant to Fed. R. App. P. 43(c)(2).
McMILLIAN, Circuit Judge.
Billy Grisso appeals from the final judgment entered in the District Court2 for
the Eastern District of Missouri granting him mandamus relief but denying him costs.
For reversal, Grisso argues that he was the prevailing party because the district court
exercised its mandamus jurisdiction, and that the district court therefore abused its
discretion in denying him costs. For the reasons discussed below, we affirm the
judgment of the district court.
The relevant facts are as follows. In September 1997 Grisso, a state prisoner
from 1983 to 1994, petitioned for a writ of mandamus against the Social Security
Commissioner, seeking reimbursement of disability insurance benefits that had been
suspended while he was incarcerated. Also in September 1997, Grisso filed an
application with the Social Security Administration (SSA) for approval of industrial
training programs as rehabilitation programs. At the time his benefits were
suspended, the law provided that an individual confined in jail for a felony might be
entitled to monthly benefits if he participated in a rehabilitation program. See 42
U.S.C. § 402(x)(1) (1993) (amended 1994). When the SSA declined to consider his
application, he moved the district court either to compel the SSA to rule on his
application, or to approve the industrial training programs itself. The district court
characterized the action as one seeking wrongfully terminated benefits and dismissed
it. We reversed and remanded, however, for the district court to exercise its
mandamus jurisdiction. See Grisso v. Apfel, 219 F.3d 791 (8th Cir. 2000) (per
curiam), cert. denied, 121 S. Ct. 1497 (2001). On remand, the district court ordered
the Commissioner to consider the September 1997 application, and held that neither
party would recover costs of the action from the other.
2
The Honorable Catherine D. Perry, United States District Judge for the Eastern
District of Missouri.
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Under Fed. R. Civ. P. 54(d)(1), “costs other than attorneys’ fees shall be
allowed as of course to the prevailing party unless the court otherwise directs; but
costs against the United States, its officers, and agencies shall be imposed only to the
extent permitted by law.” Costs may be awarded to the prevailing party in any civil
action brought against the United States or any agency. See 28 U.S.C. § 2412(a)(1).
We have interpreted Rule 54 as codifying the presumption that the prevailing party
is entitled to costs, but we also have clarified that district courts retain “substantial
discretion” in awarding costs. See Greaser v. Mo. Dep’t of Corr., 145 F.3d 979, 985
(8th Cir.), cert. denied, 525 U.S. 1056 (1998).
We conclude that costs are recoverable here and that Grisso was the prevailing
party. Nonetheless, we find no abuse of discretion in the district court’s denial of
costs, given that Grisso had achieved only a narrow victory and that he already had
received some financial relief by being allowed to proceed in forma pauperis. Cf. id.(even though defendant was prevailing party, district court had discretion to refuse
to tax costs in defendant’s favor; discretion to deny costs was not limited to
misconduct or other action worthy of penalty on prevailing party’s part); Richmond
v. Southwire Co., 980 F.2d 518, 520 (8th Cir. 1992) (per curiam) (award of costs may
be reduced or denied because prevailing party obtained only nominal victory, or
because taxable costs of litigation were disproportionate to result achieved). Our
finding of no abuse of discretion is bolstered, moreover, by Grisso’s failure to move
to recover costs in the district court and to present a bill of costs outlining what
expenses he incurred in litigating the action. See 28 U.S.C. § 1920 (requiring bill of
costs to be filed).
Accordingly, we affirm.
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A true copy.
Attest:
CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.
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