Argument recap: Justices worry that an easy-to-administer rule might open the floodgates to frivolous prisoner suits
From early on in Monday’s oral argument in Coleman-Bey v. Tollefson, it was quite clear that the Justices were unpersuaded that the so-called “three strikes” provision of the Prison Litigation Reform Act of 1996 (PLRA) – which bars prisoners from filing fourth or successive civil suits absent exigent circumstances unless they can afford the hefty federal filing fee – is clear about whether a prior dismissal of a prisoner’s suit counts as a strike even while that dismissal is properly under appeal. In the abstract, a conclusion that the relevant statutory provision is ambiguous ought to militate in favor of the petitioner, Michigan prisoner André Lee Coleman-Bey, whose proposed interpretation – that a prior dismissal counts as a strike only once it becomes “final” on appeal – would be quite easy for lower courts to administer going forward.
But questions from across the bench seemed to reveal discomfort on the part of many of the Justices with the potential mischief that such a rule might engender insofar as it would allow prisoners to file numerous potentially frivolous lawsuits while an appeal of their dismissed third strike was pending. Whether Coleman-Bey’s counsel, Williams & Connolly partner Kannon Shanmugam, was able to assuage those concerns may end up having everything to do with how the Justices rule.
As we noted in our preview of Monday’s argument, the issue in Coleman-Bey arises out of an eight-to-two circuit split in interpreting the PLRA’s three-strikes provision, which bars a prisoner from receiving in forma pauperis 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.” Although the majority of lower courts have held that a “prior occasion” does not include an otherwise qualifying district court dismissal that was under appeal at the time the new suit was filed, a divided panel of the Sixth Circuit, in Coleman-Bey’s case, sided with the Seventh Circuit in holding that it does. In particular, the Sixth Circuit relied on the statute’s reference to “an action . . . that was dismissed,” combined with the disjunctive reference to both an “action” and an “appeal,” to hold that, even while it is being appealed, a district court decision counts as a strike until and unless it is reversed.
In marked contrast to the briefing, Monday’s argument spent surprisingly little time on the question of whether the three-strikes provision is ambiguous. To be sure, Justice Scalia asked Shanmugam a series of questions about why the PLRA differentiates between an “action or appeal,” but Shanmugam effectively responded by explaining the difference between a qualifying district court dismissal that is affirmed on appeal (which, on Coleman-Bey’s reading, would count as one strike); and a qualifying district court dismissal, the appeal from which is also dismissed for frivolousness (which would count as two strikes). Thus, Shanmugam argued, the PLRA treats non-dismissed appeals as part and parcel of the same “prior occasion,” whereas dismissed appeals are treated separately – as two distinct improper acts.
Following that colloquy, however, most of the rest of the argument for both sides (and for the United States as an amicus in support of the state) drifted away from the PLRA’s text and toward the potential consequences of each of the proposed interpretations for when a prior dismissal should “become” a strike for purposes of the three-strikes provision. In this regard, one of the more telling exchanges came roughly two-thirds of the way into Shanmugam’s presentation, when Justice Breyer suggested that, whereas third-strike dismissals are seldom (if ever) reversed on appeal, a rule that didn’t count the dismissal as a strike until the appeal was final would open the door to a frequent filer, who “will file 38 more cases or maybe a hundred and there will be no way to stop [him]” if they are all filed while the appeal of the third-strike dismissal remains pending. Shanmugam replied both that any interpretation of the three-strikes provision necessarily allows some moment at which a vexatious litigant could file dozens of frivolous lawsuits, and that, in any event, there’s no record of this phenomenon in the eight circuits that have previously not counted dismissals as strikes until the appeal was final. But it was not clear whether that rejoinder resonated with the Justices.
Arguing on behalf of the respondents, Michigan Solicitor General Aaron Lindstrom opened by focusing on the text of the three-strikes provision, but he was quickly challenged on that line of reasoning by Justices Kagan and Sotomayor, who pressed him on the incompleteness of the statute’s text and the need to resort to “background principles” to understand exactly what Congress meant. That Lindstrom nevertheless held his ground well was perhaps best demonstrated by questions from Justices Kennedy and Alito toward the end of his presentation, pushing him on the differences not between the state’s reading of the PLRA and Coleman-Bey’s, but between the state’s reading and that offered by the federal government. As Lindstrom reiterated, the principal distinction between those two positions goes to whether a district court’s dismissal of a prisoner suit counts as an immediate third strike only against future litigation (as the United States argued in its amicus brief), or also against an appeal of the third-strike dismissal itself (as Michigan argued). As Lindstrom concluded in a colloquy with Justice Alito, the federal government’s position finds little support in the text of the provision, since it treats the term “prior occasions” differently as applied to fourth-or-successive suits versus appeals of third-strike dismissals.
Arguing on behalf of the United States, Assistant to the Solicitor General Allon Kedem spent most of his ten minutes defending this precise interpretation, especially in the face of skeptical questions from Justice Breyer. Yet, for all the time the Justices spent trying to sort out differences between Michigan’s position and that of the United States, such a distinction would only matter as applied to a case in which the court of appeals refuses to confer in forma pauperis status on a prisoner who is appealing the denial of his third-strike dismissal. Coleman-Bey’s case, in contrast, was a fourth suit in which the only question is whether there had already been three strikes at the time he filed. And on that point, Michigan and the United States – and, it seems likely, a majority of the Justices – all agree.
Plain English: A federal statute requires prisoners to pay the full filing fee for a lawsuit if they have previously had “three strikes”: three different lawsuits dismissed because they were frivolous. The question in this case is whether a previous dismissal counts as one of the strikes if it was still being appealed by the plaintiff at the time he filed his new lawsuit. Monday’s oral argument suggests that the Justices are likely to side with Michigan (and the federal government, as a friend of the Court in support of Michigan), and hold that the answer is yes.