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Argument preview: Filing fees and payments under the Prison Litigation Reform Act

The filing fee for a lawsuit in a federal trial court is expensive:  approximately $400.  If you lose that lawsuit and want to appeal, you have to pay the courts another $500.  As a general rule, the courts can waive those fees for litigants who can’t afford them, and for many years it did so for prisoners, who now generally make somewhere between $0.23 and $1.15 per hour.

But in 1996, in an effort to curb frequent and frivolous lawsuits by inmates in federal courts, Congress passed the Prison Litigation Reform Act.  Instead of waiving the fees for prisoners, the act does the opposite.  It requires indigent prisoners to pay the filing fees for their lawsuits by paying part up front and then making monthly installment payments of twenty percent of their previous month’s income until the fees are paid in full.

Tomorrow the Supreme Court will hear oral arguments in a case involving the method that courts should use to collect the monthly installment payments for indigent prisoners who have filed more than one case or appeal.  The Justices’ eventual ruling could affect the more than thirty thousand cases filed by prisoners in federal courts each year. 

Antoine Bruce is serving a fifteen-year sentence for armed kidnapping and assault with intent to kill.  During his time in federal prison, he has been in court a lot, filing or joining no fewer than seventeen lawsuits and appeals.  The dispute now before the Court arose when Bruce joined an appeal filed by Jeremy Pinson, who is serving a twenty-year sentence for (among other things) threatening the president and has filed at least one hundred lawsuits while in prison.  Bruce asked the court of appeals to allow him to delay the monthly installment payments on his filing fees until he had finished making monthly payments, not to exceed twenty percent of his total monthly income, on the earlier cases that he had filed – an interpretation of the PLRA known as the “per prisoner” approach.

The court of appeals denied that request.  Instead, in an opinion by Judge Sri Srinivasan that evokes the clear and straightforward opinions of Justice Elena Kagan, it held that Bruce was required to pay twenty percent of his monthly income for each case that he had filed – known as the “per case” approach.  Bruce asked the Supreme Court to rule on which approach to the monthly installment payments is the proper one under the PLRA, and the federal government – while disagreeing with Bruce on the merits of his case – agreed that the issue warranted review.

Bruce’s main argument hinges on the text of the PLRA.  He points to a sentence which instructs prison officials to send the monthly payments “to the clerk of the court” until “the filing fees are paid.”  The fact that Congress used the phrase “clerk of the court” in the singular, he argues, while referring to “filing fees” in the plural suggests that only one clerk would receive the monthly installment payments even if a prisoner owes filing fees for more than one case.

The federal government also parses the text of the PLRA closely, but it reaches a different result.  The government contends that the entire provision is “written from the perspective of a single action or appeal,” requiring an inmate to make “an initial partial payment” and “regular ‘monthly payments’” for each lawsuit or appeal.  And it downplays the statute’s reference to “filing fees” in the plural, explaining that “multiple fees can (and typically do) apply in a federal lawsuit or appeal.”

Bruce also invokes the Constitution, telling the Court that adopting his “per prisoner” approach would allow the Court to avoid deciding the case in a way that would intrude on the inmates’ “constitutional right of access to the courts to raise claims involving fundamental rights.”  And the Southern Poverty Law Center, which filed a “friend of the court” brief supporting Bruce, reminds the Court that prisoner lawsuits have been especially important in addressing serious issues like solitary confinement and the conditions of confinement, religious freedom, and the Fourth Amendment.

But here too the government dismisses those concerns, stressing that even if there were some hypothetical general right to have court fees waived, its “per case” approach would not violate that right because the PLRA still allows an inmate to file a lawsuit even if he lacks the funds to make the initial partial payment of the filing fee.

Each side assures the Court that its approach is also most consistent with the purpose underlying the PLRA.  Bruce acknowledges that the PLRA was intended to deter frivolous lawsuits, but he maintains that Congress did not mean to do so at the expense of lawsuits that actually have merit.  By requiring a prisoner to pay twenty percent of his monthly income each month, he argues, his “per prisoner” approach strikes just the right balance:  it costs enough to make inmates “think twice” before filing potentially frivolous arguments, but it is not so expensive that it will deter them from filing meritorious cases.

The government responds that the “per prisoner” approach does not provide the economic disincentive to filing frivolous lawsuits that the PLRA intended because it allows a prisoner to file as many lawsuits or appeals as he wants, while capping his monthly payment at twenty percent of his income.  It’s true that after a prisoner finishes paying for one lawsuit, he will then have to pay for the second and any subsequent suits or appeals, the government agrees, but there is no guarantee that he will even finish paying off the fees for one lawsuit, particularly if he is released.  Meanwhile, the government cautions, “there would be little deterrent to his filing more lawsuits.”

Finally, Bruce argues that his rule is preferable because it avoids a practical problem that the PLRA doesn’t address:  what happens when a prisoner owes filing fees for five separate lawsuits, which would consume all of his monthly income?  Or six, which would exceed his income?  The government retorts that Congress probably didn’t expect such a scenario to arise very often, because the PLRA also contains a “three strikes” provision that prohibits courts from giving indigent status to prisoners who have already had three frivolous or malicious lawsuits dismissed.  “The fact that the prisoner is a frequent litigant is not a reason to apply the statute more leniently,” the government emphasizes.  Tomorrow’s oral argument will tell us more about whether the Justices – several of whom are not particularly sympathetic to prisoners, much less those who are serial filers of lawsuits – share this view.

Recommended Citation: Amy Howe, Argument preview: Filing fees and payments under the Prison Litigation Reform Act, SCOTUSblog (Nov. 3, 2015, 7:58 PM),