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Argument analysis: Surprises for both sides in prisoner fee dispute

Going into today’s oral argument in Bruce v. Samuels, a case involving the interpretation of a federal law that requires inmates to pay twenty percent of their monthly income toward the filing fees for their cases, you would be forgiven for anticipating that the Court could once again divide on ideological lines:  the Court’s more liberal Justices would side with the federal inmate, the more conservative Justices would side with the government, and the outcome would hinge on Justice Anthony Kennedy.  Kennedy may still hold the deciding vote (although it’s hard to say, because he did not ask any questions during the roughly fifty minutes of oral argument), but the case proved to be full of surprises. 

The first surprise came when some of the Court’s more liberal Justices appeared relatively unsympathetic to Antoine Bruce, the federal inmate who is arguing that he should only be required to pay twenty percent of his total monthly income toward the filing fees for all of his lawsuits, rather than twenty percent of his income for each case.   Justices Elena Kagan and Ruth Bader Ginsburg both challenged Bruce’s reading of the provision of the Prison Litigation Reform Act before the Court, but – more worryingly for Bruce – Ginsburg also seemed to suggest that Bruce was precisely the kind of serial litigant that Congress had in mind when it enacted the PLRA:  noting that Bruce “has multiple filings,” she asked his lawyer, Anthony Shelley, whether, “realistically, those later fees will never be paid” if the Court adopts his position?

Justice Sonia Sotomayor also seemed satisfied that – contrary to Bruce’s warnings – the government’s rule would not leave even inmates who filed multiple lawsuits completely penniless, because the federal Bureau of Prisons will only take the monthly payment out of an inmate’s account if the account will still have at least ten dollars remaining after the payment is made.  “Why,” she asked Shelley, “isn’t the government’s concession” on this point “enough?”   But that led to a spirited debate about whether the BOP’s policy is actually consistent with the PLRA, which directs prison officials to send the monthly payments whenever the account balance exceeds ten dollars, without any mention of leaving a ten-dollar “cushion.”  Chief Justice John Roberts suggested that it was not, while Justice Stephen Breyer sought to salvage the point by offering an interpretation of the statute that would be in line with the BOP’s policy.  And later on, Justice Antonin Scalia downplayed the significance of this potential sticking point, observing that this issue could come up even when an inmate only owes fees for one case.  “It’s a problem either way,” he noted.

The second surprise was for Assistant to the Solicitor General Nicole Saharsky, arguing on behalf of the federal government.  Saharsky repeatedly emphasized that “Congress knew that there were multiple filers out there, and that if they were going to file more lawsuits, they should pay more.”  But she could not possibly have expected that her chief antagonist would be Chief Justice John Roberts, who was by far the Justice most concerned about the plight of “frequent filers” who (on the government’s rule) could see all of their monthly income go toward their filing fees, leaving them unable to purchase even basics like books or stamps.

Perhaps the key exchange came after Saharsky sought to reassure the Court that an inmate’s income would be wiped out only if he had filed five or more cases.  And she characterized the problem, on the federal level at least, as “very small,” telling the Court that there are only sixty federal inmates who are paying fees for five or more cases or appeals.  Even in those relatively rare scenarios, she emphasized, there are safeguards in place to protect inmates:  an inmate can still bring a meritorious claim even if he does not have enough for the initial payment on the filing fee, the federal Bureau of Prisons will not allow an inmate’s account to dip below ten dollars, and the BOP may also provide truly indigent prisoners with access to phone calls and stamps at no cost to them.

Saharsky’s assurances didn’t mollify Roberts, however.  He first told Saharsky that he found the question before the Court “very difficult to resolve” based on the statutory language.  Roberts referred to what he regarded as the “extreme harshness” of taking money to buy books from someone who is in prison there for twenty years.  When Roberts later repeated, somewhat plaintively, that “if you’re there for twenty years, you should be able to buy a book,” Saharsky reminded him that prisons also maintain libraries.  Roberts then shot back, presumably sarcastically, “I’m sure they are very good libraries, too.”

Not all of the Justices provided surprises, however.  Justice Antonin Scalia left little doubt that he was squarely in the government’s camp.  He told Shelley that if an inmate like Bruce “files enough cases, he’ll never have to pay for it.”  “What’s the disincentive,” he asked, to file suits?   And he seemed untroubled by the prospect that the government’s policy could wipe out all of the funds that an inmate has earned from his job, asking Shelley rhetorically whether there is “a constitutional right that you have income, especially if the fact that they don’t have any is his own fault?”

With not only Justice Kennedy but also Justices Samuel Alito and Clarence Thomas silent during the oral argument, it’s difficult to make predictions about how the case may turn out.  But neither of them is generally predisposed to vote in favor of inmates.  With the Chief Justice as apparently Bruce’s only potential ally today, that creates the fascinating hypothetical prospect of an eight-to-one vote in favor of the government, with Roberts as the lone dissenter.  But none of that may come to pass.  The Chief Justice sometimes takes on the role of asking the hardest questions of the side he presumptively favors.  So all of his questions may come to naught, with a sweeping victory for the government.  Stay tuned – a decision in the case is expected sometime next year.

Recommended Citation: Amy Howe, Argument analysis: Surprises for both sides in prisoner fee dispute, SCOTUSblog (Nov. 4, 2015, 4:22 PM),