High Court Ponders Prisoner Lawsuit Filing Fees

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By Alisa Johnson

Nov. 4 — The filing fee provision of the Prison Litigation Reform Act was the subject of scrutiny in the U.S. Supreme Court Nov. 4 as the justices considered whether the cap on monthly exaction of filing fees from in forma pauperis prisoners stays at 20 percent of the prisoner’s monthly income regardless of the number of cases for which the prisoner owes fees.

Under 28 U.S.C. §1915, a prisoner who files a civil action or appeal in forma pauperis must pay court filing fees in installments. After an initial partial filing fee, the remainder is to be paid through “monthly payments of 20 percent of the preceding month’s income credited to the prisoner’s account.” The parties argued over whether the installment fee obligation applies per prisoner or per action.

The U.S. Court of Appeals for the District of Columbia Circuit held in this case that a prisoner is not entitled to defer the payment of fees in one case until he completes payment of fees owed in other cases. It read the provision as applying to each action or appeal filed by a prisoner, so that the initial partial filing fee is assessed each time a prisoner brings a civil action or files an appeal.

Arguing for the government, Assistant to the Solicitor General Nicole A. Saharsky of Washington, said the provision is written from the perspective of a single case. For each action or appeal, it provides a list of things for the court to do, she said.

Incentives and Disincentives

Justice Antonin Scalia commented that if a prisoner files enough cases, he will never have to pay for them all. What is the disincentive for him to continue to file cases, he asked Anthony F. Shelley of Washington, who argued for the prisoner.

Shelley pointed to the “three strikes” rule in Section 1915(g), which precludes IFP status “if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted.”

He added that a court can dismiss under the PLRA those cases that are frivolous. Congress also wanted to make sure the meritorious cases could be brought, he said. He added that the real disincentive is the initial filing fee.

Saharsky said, “Congress knew that there were multiple filers out there, and that if they were going to file more lawsuits, they should pay more.”

Roberts: Gov't Argument ‘Harsh.'

Chief Justice John G. Roberts Jr. seemed troubled by the implications of the “per action” approach.

He said to Saharsky that “no statute pursues its purposes at every cost. And maybe Congress decided they didn't need to take the last 23 cents an hour the prisoner earned to promote the deterrence when they have all these other antifiling provisions in the law.”

Saharsky said the filing fee provision is the only financial disincentive to frivolous lawsuits.

Roberts described the provision as “confusing,” but added that it is at least as reasonable as the government's reading, to say no more than 20 percent of a prisoner's income may be taken, as opposed to 40 percent if there are two cases, or 60 percent if there are three.

Roberts added that the prisoner's position doesn't mean that he never has to pay; only that he pays the fees for second and subsequent actions after he pays for the first. If he has a long sentence to serve he will pay for a long time, Roberts added. Saharsky responded that once a prisoner is released, if he wants to continue his case he can seek regular IFP status and avoid future payments. She added that there are “serious practical problems” with collecting from released prisoners.

Roberts pointed to what he described as “the extreme harshness” of the government's position: “We're talking about earning 23 cents an hour, filing fees of $350, $505. And the money is used to for what? Phone calls to family and friends, stamps for letters, and to buy books. And you're going to take the last, you know, whatever so that someone who's in there for 20 years can't even buy a book? That seems very, very harsh.”

Minority of Prisoners

Saharsky replied that only multiple filers, a minority of prisoner litigants, would face multiple payments per month. She added that the statute never prevents a prisoner from bringing a meritorious case on account of the safety valve provision in Section 1915(b)(4), which allows a prisoner who cannot pay the initial filing fee to proceed anyway.

Roberts added, “Just a thought. Well, if you're there for 20 years, maybe you should let them buy a book.” When Saharsky pointed out that prisons have libraries, Roberts responded, “I'm sure they are very good libraries, too.” Scalia asked rhetorically, “does Amazon really make a lot of money off these people?”

Saharsky commented that many prisoners receive regular deposits into their accounts in addition to their prison income. According to the federal Bureau of Prisons, she said, the median income an inmate receives is approximately $120 a month. She further stated that the scenario that concerns Roberts is “a very small problem”—of the over 200,000 prisoners in the federal system, 944 inmates are paying on one filing fee order, 60 inmates are paying on five or more and 42 have six or more orders.

Minimum $10 Threshold

Subsection (b)(2) says, “After payment of the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent of the preceding month's income credited to the prisoner's account. The agency having custody of the prisoner shall forward payments from the prisoner's account to the clerk of the court each time the amount in the account exceeds $10 until the filing fees are paid.”

Shelley argued that this provision means if the prisoner has $11, the filing fee can be assessed even if it wipes out the account. There is circuit court case law allowing that, he added. However, the government conceded that the account cannot be brought below $10.

The justices disagreed as to the interpretation of the provision.

Justice Stephen G. Breyer said fees can never bring the account below $10; only a portion of the fee can be taken to prevent it. Justice Sonia Sotomayor said the entire 20 percent can be taken even if it brings the account below $10, but once that happens no additional fee can be taken.

The discussion prompted Scalia to ask, “is there a constitutional requirement that prisoners be given income while they are in prison?” He added, “especially if the fact that they don't have any is their own fault, if they keep filing baseless suits.”

Justice Ruth Bader Ginsburg said the position of the Bureau of Prisons is that no matter what, the prisoner has to be left with $10. Shelley said that's a matter of grace; it's not set out in any regulation. He added that he knows of two states in which, if the prisoner has $10.01, the prison will assess multiple fees even if it brings the account down to zero.

Justice Elena Kagan added that she is confused as to how the BOP is handling payments when a prisoner has just over $10. Saharsky said the BOP has an unofficial policy of treating $10 as a floor. Scalia indicated that he saw nothing in the language of the provision to justify such a policy; Breyer said he did and that the “obvious purpose” is “to leave this prisoner with at least $10.”

Saharsky said it isn't necessary for the court to resolve “the $10 issue” to resolve the question presented in this case. “It's a problem either way,” Scalia said.

To contact the reporter on this story: Alisa Johnson in Washington at ajohnson@bna.com

To contact the editor responsible for this story: Reilly Larson at rlarson@bna.com

Full text at http://src.bna.com/Vr-844_p86b.pdf.