Merritt v. Housing and Urban Development

Background

Ardy Merritt had been allowed to proceed without paying court fees in the district court. The court later dismissed his action for lack of subject-matter jurisdiction, and Merritt filed a notice of appeal.

The Ninth Circuit referred the matter to Judge Chesney to decide whether Merritt’s fee-waiver status should continue on appeal. Under Federal Rule of Appellate Procedure 24(a)(3), a person who was allowed to proceed without paying fees in district court may generally do so on appeal unless the district court certifies that the appeal is not taken in good faith or finds another reason the person is not entitled to that status.

Underlying Claims and Prior Dismissal

Merritt’s claims arose from a state-court eviction lawsuit filed against him by SB Mann 3 LLC, identified in the opinion as the landlord. He alleged that the Department of Housing and Urban Development and the City of Berkeley failed to intervene in or stop those proceedings and failed to prevent the landlord from allegedly allowing squatters to live at the property. Merritt sought $35,000 from Housing and Urban Development.

The court had dismissed Merritt’s claims against Housing and Urban Development because he did not allege compliance with the Federal Tort Claims Act’s claim-presentation requirement. That requirement generally bars an action for money damages against the federal government until the claimant first presents the claim to the appropriate federal agency. The court then dismissed the claims against the remaining defendants, which arose under state law, and denied Merritt’s request to stop the state-court proceedings.

Reasoning

In his notice of appeal, Merritt indicated that he would argue that his communications with Housing and Urban Development seeking help with the landlord dispute should count as a claim under the federal claim-presentation requirement. Judge Chesney concluded that this argument was not legally arguable on its merits because the communications did not demand money damages from Housing and Urban Development.

Ruling

The court CERTIFIED that the appeal was not taken in good faith and found that Merritt was not entitled to proceed without paying fees on appeal. The clerk was directed to send the order to the Ninth Circuit and to Merritt. This order addressed Merritt’s fee-waiver status on appeal; it did not reopen the earlier dismissal.