Bruce v. Samuels – Oral Argument – November 04, 2015

Media for Bruce v. Samuels

Audio Transcription for Opinion Announcement – January 12, 2016 in Bruce v. Samuels

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John G. Roberts, Jr.:

We’ll hear argument next in Case 14-844, Bruce v. Samuels. Mr. Shelley.

Anthony F. Shelley:

Mr. Chief Justice, and may it please the Court: There are at least three reasons why the Court should adopt what the courts of appeals have called the per-prisoner approach under PLRA Section 1915(b)(2). One, the per-prisoner approach best comports with the statutory text. Two, the per-prisoner approach is the only one consistent with the careful balance Congress struck between deterring frivolous prisoner lawsuits and preserving their right to bring meritorious ones. And three, the per-prisoner approach avoids anomalies and disincentives that Congress could never have intended, disincentives such as discouraging prisoner work by taking one hundred percent of their income month after month. I would like to, of course, start with the text.

The key sentence is in — the key sentence is the second sentence of Subsection (b)(2)

It says the following: “The agency having custody of the prisoner shall forward payments from the prisoner’s account to the clerk of the court” — singular — “each time the amount in the account exceeds $10 until the filing fees” — plural — “are paid.” The combination of that singular, clerk of the court, and filing fees, plural, indicates the per-prisoner approach because it means one clerk is to receive payments, even when there are numerous filing fees. Filing fees, the plural, appears in the —

Antonin Scalia:

There — there —

Anthony F. Shelley:

— in the statute exactly twice.

Antonin Scalia:

Can’t there be more than one filing fee for a single court?

Anthony F. Shelley:

No, there cannot, not in the way Congress understood the term in the PLRA.

If you look to (b)(1) and (b)(3), Congress creates it almost as a term of art.

A filing fee includes — a filing fee, with the word “filing” in front of “fee,” a filing fee includes all of the subsidiary costs to start up a case. So a court of appeals, for instance, has a $500 docketing fee and a $5 statutory fee, and that’s referred to as a —

Ruth Bader Ginsburg:

So what happens if you have — the district court makes an order, there has to be a filing fee?

Anthony F. Shelley:

In the district court?

Ruth Bader Ginsburg:

Yes, and then that fee is not totally paid.

In fact, the prisoner loses, so there’s a cost award in addition.

And then it goes up to the court of appeals, where there’s another filing fee.

Anthony F. Shelley:

Right.

Ruth Bader Ginsburg:

Does — does — on your reading, does the court of appeals filing fee also have to wait until the district court filing fee is fully paid?

Anthony F. Shelley:

Yes.

There would be an initial partial filing fee that’s paid upon the — the filing of the appeal.

Under Subsection (b)(1) there’s a 20 percent initial partial filing fee that would be assessed against the prisoner.

Ruth Bader Ginsburg:

And that would be across the board that you always have to pay.

Anthony F. Shelley:

Always have to pay that. But the second filing fee, the one from the court of appeals, would line up.

So the first filing fee from the district court would be paid off first, and then sequentially the court of appeals would be paid off, but only 20 percent would be taken every month from the prisoner.

You wouldn’t take 40 percent.

Antonin Scalia:

If he files enough cases, he’s never going to have to pay for it, right? I mean, you know, he files 20 cases, that 20 percent will never — will never come home to roost. What — what’s the disincentive for him — for his continuing to file cases?

Anthony F. Shelley:

Well, first of all, it would come to roost back in 1995 when Congress enacted the statute because the filing fee for a district court case was only $120, and a court of appeals was 105.

And so a prisoner who earned, say, 55 or 100 — 50 or $100 a month, which is not outlandish given the small wages, could pay off a filing fee in a — in a matter of months under that.

It’s much higher now. But to get to the rest of your question, Justice Scalia, there are a number of other things in the statute that work in tandem with (b)(2) to stop that kind of behavior.

So there’s the initial partial filing fee.

He or she is always going to have to pay that. There’s the three-strikes rule, which comes into being. There’s the ability of the district court or court of appeals to sui sponte dismiss under the PLRA those cases that are frivolous.

Antonin Scalia:

All right.

So — so you say there are disincentives, but this was intended to be a disincentive.

Was this not intended to be a disincentive?

Anthony F. Shelley:

It was and it is.

Antonin Scalia:

I’m pointing out that it’s a very ineffective disincentive if the person keeps filing a lot of cases.

Anthony F. Shelley:

Well, it’s not an ineffective disincentive because it creates months and months more of additional income being garnished.

So it lines up with the others.

None of them were anticipated to be wholly barriers to filing a lawsuit.

And this one, as with the others, creates a whole scheme where there are added disincentives. But Congress also wanted to make sure the meritorious cases would be brought.

And so it didn’t want to be overwhelming and put — and put the thumb too much on the scale to kill all of those cases.

Elena Kagan:

Mr. Shelley, can we go back to the sentence that you’re relying on, because I have to admit I don’t understand your reading.

The — the sentence says — and I’m taking out some unnecessary words.

It says, the agency shall forward payments to the clerk, singular, until the filing fees are paid. Now, that makes perfect sense if the filing fees are all in one case, going to a single clerk.

But if you’re right and what they mean is the filing fees are in multiple cases, then it doesn’t make sense to say that the agency shall forward payments to the clerk. The only way to make that sentence makes sense, if the filing fees are in multiple cases, is for Congress — is for the statute to have read, the agency shall forward payments to many clerks or to several clerks seriatim. And that suggests not the per-prisoner approach, but the per-case approach.

Anthony F. Shelley:

I think that’s incorrect because I think what — what you should insert, if — if necessary, in front of the clerk of the court is the relevant clerk of the court.

So the prison officials are going to distribute to the relevant clerk of the court.

Elena Kagan:

But then — so that — that seems right, to make the sentence work the way you want it to work — and this is the sentence you are relying on.

To make it work the way you want it to work, you have to add language to it.

Anthony F. Shelley:

You — you do not, because there’s still — there’s one clerk of the court, and there’s always going to be a clerk, because every case the filing fee is paid to a clerk; so there’s always going to be the clerk of the court.

And — and in most cases — in — in all cases, there’s only one filing.

Elena Kagan:

Yes, I’m going to say, you know what, even as I look at that, even if you add that language, it still doesn’t make sense.

“The agency shall forward payment to the relevant clerk until multiple filing fees are paid.” It’s just — it doesn’t — the two halves of the sentence don’t connect there.

Anthony F. Shelley:

Well, the filing fee’s plural. It — it can’t allow for the — for the per-case approach, the opposite approach, because filing fees we know means more than one.

And so it has to mean more than one, because in (b)(1) and (b)(3) Congress used this term of art to mean filing fee encompasses.

It’s the thing that comprises all of the other fees. And so I would say that the opposite side is the one that cannot make any textual sense out of that sentence, because there’s never more than one filing fee from a — to a single clerk.

Elena Kagan:

Well, but Congress doesn’t know that.

Congress thinks fees in a case, fees in a case.

So then it makes perfect sense.

Give the fees in a case to the clerk.

But you’re saying give fees in multiple cases to the clerk, when it’s not.

Elena Kagan:

It’s give fees to — in multiple cases to multiple clerks.

Anthony F. Shelley:

It’s give the fee to that clerk that that clerk is owed until all the fees are paid.

You keep going back to a clerk until all the fees are paid.

So —

Ruth Bader Ginsburg:

Isn’t — isn’t the statute drafted, though, that with a single-case focus, that is, 1915 throughout, talks about an action?

Anthony F. Shelley:

Not — not true.

First of all, the whole purpose of the statute was to deal with — with multiple filers.

So the whole — Congress comes into it with a purpose of dealing with individuals who file many cases. But second of all, the three-strikes rule assumes numerous cases.

And I’d also point to Section 1915(d), which has the statutory language, “The officers of the court shall issue and serve all process and perform all duties in such cases.” So there are references to more than one case in various places.

But even if it was written in a singular way, in a way to deal only with one case, that really doesn’t prove anything against us.

It just means you got to look to other statutory construction tools, because it would just say that there’s going to be an initial partial filing fee in every case.

And there needs to be installment payments in every case. And we don’t disagree with that.

We agree that there are installment payments in every case, and it’s just a matter of when.

And the statute doesn’t answer when, necessarily, right off the bat.

Ruth Bader Ginsburg:

But why is the initial fee — the initial partial fee, you say each time you file it, you’ve got to pay that? Why shouldn’t that go the same way?

Anthony F. Shelley:

Well, the — the two sections are written differently.

(b)(1) is very different from (b)(2)

It’s a different collector.

One is the prison official.

The other is the clerk of the court.

One mentions filing fees, plural.

The other only mentions filing fee, singular.

There’s a $10 rule in the second — in the second — in (b)(2) but not in (b)(1). So they — they are a little bit different. But even if —

Stephen G. Breyer:

If you don’t know — I mean, I can’t get anything out of the second sentence, to tell you the truth, because I think that a prison is usually within a single district.

And so when you’re worried about a multiple filer, what he does is he files about 15 cases in the same court. And — and therefore, it’s perfectly understandable why Congress would refer to multiple fees, because they are going to be like ten of them. It’s the people they are really worried about are — are what’s at issue.

So I can’t get anything out of the second sentence. It’s the first sentence that — that is, it seems to me, both your strength and your weakness. There it talks about after payments of the — the initial partial filing fee.

Okay.

It sounds as if it’s talking about a case.

And so what do we do about that? I mean, there it is.

“After the initial partial filing fee, the prisoner shall be required to make monthly payments of 20 percent,” et cetera.

Stephen G. Breyer:

That’s where you have the word “fee.”

Anthony F. Shelley:

Well, first of all, I don’t think Congress necessarily had in mind a prisoner who is filing numerous cases in the same court, because if you look up to (a)(2), for instance, it talks about the prisoner having to file a statement of his indigency. And Congress talked about it needed to be obtained from the appropriate official of each prison at which the prisoner is or was confined. And the government concedes that prisoners are moved around all the time, and therefore, there are numerous districts —

Stephen G. Breyer:

I don’t mean it’s exclusive.

Anthony F. Shelley:

Sure.

Stephen G. Breyer:

I’m just giving you an explanation as to why they might have used the words “fees,” even though they previously defined a filing fee of $350.

Anthony F. Shelley:

So then let’s go to that first sentence in — in the statutory text in Subsection (b)(2)

We don’t disagree that after a partial filing fee is assessed, the installment payments will also start to kick in.

It’s just a matter of do they line up or do they — or do they come first. So I don’t think under that — I don’t think (b) — (b)(2) in that first sentence then would answer the question.

It — under our theory, you also get a — you also get an installment payment after the payment of the initial partial filing fee. But —

Sonia Sotomayor:

In terms of one of your purposes, why isn’t the government’s concession that in no circumstance can a fee 20 percent be taken until — unless it’s above $10? Why doesn’t that take care of your problem?

Anthony F. Shelley:

Because I don’t think the government’s position is — is statutory allowed.

So if you take a situation where, let’s say $11 was earned by the prisoner the — the previous month, and that’s all that was in the account.

In that case you’d have to take — under the statute, you meet the statutory terms. There’s $10 in — in the account, and you have to take 20 percent.

“Shall” is the word.

Shall take 20 percent if there’s over $10.

Well, there’s $11 in there.

The government say, we’re not going to take the 20 percent because it’s going to send it under $10.

So that — that can’t work out.

Sonia Sotomayor:

No, what the government — I understand — and they’ll correct me — is I think they are saying that if you pay a — the initial filing fee, and you’re down to $8, they can’t take another 10 — another 20 percent.

Anthony F. Shelley:

Sure.

Well, that’s —

Sonia Sotomayor:

That’s how I understood their concession.

Anthony F. Shelley:

So that was their alternative position.

But even that one won’t hurt our purposes argument, because if you take a prisoner who now, let’s say, he has $55 in income.

And that’s not outlandish because if you earn 35 cents an hour and you work a 40-hour week, you have $55.

In that situation, the first four encumbrances will take $11 each, $44, leaving you at $11.

The last one is going to take the whole amount, cause you have got a fifth encumbrance and you’re over $10. So under even this alternative approach, you take 100 percent of the income every time the income is more than $55.

Maybe I should go through that again. Okay.

So —

Stephen G. Breyer:

If you’re clarifying it, $11, I guess you’d take a dollar.

Stephen G. Breyer:

All right.

I mean, what’s unclear?

Sonia Sotomayor:

If you’re at 55, you take 10.

Anthony F. Shelley:

The statute says 20 percent if it exceeds $10.

So if you have $11 in there after the — after the fourth one, you have to take the fifth 20 percent increment —

Stephen G. Breyer:

They can’t administer it that way.

I mean, is there somebody who is administering this that way?

Anthony F. Shelley:

Every circuit who has looked at it has described the per-prisoner approach as one that as long as there’s $10 in the account, it’s the trigger.

You can take the whole income.

Stephen G. Breyer:

And they are really doing that?

Anthony F. Shelley:

As far as I know, yes.

Well, the BOP says it is not.

I understand the States, where many of the prisoner are, are doing exactly that.

And we showed two — we cited two district court cases where they went over what the States were doing, and they drain it down to zero. I mean, the Newlin case says you can drain it down to zero.

Torres, Siluk.

In fact, that’s why they — they — the — the Second, Third, and Fourth Circuits all got into this issue of — of the constitutionality or the purposes because they said, look, prisoners are going to be left with zero.

Antonin Scalia:

That’s inconceivable to me. I mean, what? Is — is there a constitutional requirement that prisoners be given income while they are in prison?

Anthony F. Shelley:

There isn’t, I — I don’t think.

They are given the essentials, but the point of it is, is that —

Antonin Scalia:

Especially if the fact that they don’t have any is their own fault, if they keep filing baseless suits.

Anthony F. Shelley:

Well, but the — you’d be out of — you wouldn’t be filing baseless suits because you got the three strikes, eventually.

But Mr. Bruce, for instance, had — had six cases before he incurred his first strike, even.

And so the — the constitutional dimension that the Second, Third, and Fourth Circuits have all adopted goes to the point of you can’t put the — the prisoner in the position of losing 100 percent of the income that he works to earn as — as the Hobson’s choice to filing what may be a meritorious case.

They haven’t said it’s unconstitutional.

They’ve just said the statute leaves you scratching your head.

Antonin Scalia:

Well, it — it’s not a Hobson’s choice if he forfeits all except $10.

That’s going to be the difference, whether he has $10 in his account or nothing.

Anthony F. Shelley:

Yes.

Yes.

And as this Court has said, and as Congress said in 1892 when it enacted the in forma pauperis statute, a man who has very little cares about each penny.

Anthony F. Shelley:

And in prison if you have $6, it makes a difference.

It makes a difference that month than if you had zero.

It’s a difference between —

Stephen G. Breyer:

Is there a way of interpreting the statute, which I think would make — I — I would guess, not in every case, where this multiple thing is likely to arise is where: Files a frivolous case, it’s dismissed by the district court, and then he takes an appeal.

Okay? There we have two. And so the question is — he has to get the filing fee.

Then the next slot is going to be, like, 20 percent or 40 percent, right? But you should leave him with $10. Given the purpose of the statute, which is to stop these frivolous suits, or at least make it a little tougher, doesn’t it make sense, say, what I just said: Leave him with the $10, but you can take the 40 percent: 20 percent for one court, 20 percent for the other? Now, maybe what I’ve just said doesn’t make sense.

To me, it makes sense at the moment.

But it would — it would both leave him with the $10, but allow the clerks to collect the 20 percent for the district court, 20 percent for the Court of Appeals. Is — is that impossible to bring about?

Anthony F. Shelley:

I think it is, given the statutory language.

I think, given the fact that the prison officials shall forward payments each time the amount in the account is greater than $10 doesn’t allow the prison official to say I’m going to use it as a floor, as opposed to a trigger. And while that might have been the way Congress could have written it, it did not.

And given the way Congress did write it, the best approach is that per-prisoner approach that leaves some money to the prisoner for things like phone calls.

Sonia Sotomayor:

Actually, I — I didn’t realize the back end of this.

Forget about the prisoner.

I’m thinking about the courts. Basically, you’re saying the last court that brings him over 10 — the moment he has over $10, the court who gives — no.

That doesn’t happen.

The court — he pays a filing fee.

He now has more than $10 in the account.

That court gets more money than the other courts?

Anthony F. Shelley:

No.

They all get — they all get 20 percent.

The — the way it should work is, is there $10 in the account? If there’s $10.01, you then can take 20 percent, a 20 percent installment.

Perhaps another 20 percent for cost; that’s a different issue. But you — for the filing fees you take a 20 percent installment, and it goes down to, say, $8 at that point. That’s the end of it under the — under the per-prisoner approach that we espouse. Under the per-case approach, the way the courts of appeals at least have understood it, if there is $10.01 in the account and there are five filing fees, that’s 100 percent of the $10.01 that goes.

20 percent for each.

Ruth Bader Ginsburg:

That wouldn’t be true for a Federal prisoner, because the Bureau of Prisons says no matter what, the prisoner has to be left with $10.

Anthony F. Shelley:

It’s a matter of grace.

It’s not set out in regulation.

It’s not set out in guidance.

It’s —

Ruth Bader Ginsburg:

Do they know to the extent to which the States are following that?

Anthony F. Shelley:

Yes.

Anthony F. Shelley:

To the extent we’ve been able to investigate that, we’ve cited two — two district courts in our reply brief.

I think one from Iowa and maybe one from another Midwest state — Maryland and Iowa.

Those two cases, the — the way the Court’s decision reads, it indicates that they are looking to see if there’s $10.01, and then they’re taking — they’re going down 20, 20, 20, and 20. And I would also note, if you look at Siluk, the Third Circuit; Torres, the Fourth Circuit; and Judge Easterbrook’s decision in Newlin, they all talk about if there’s more than the $10, you take 100 percent if there’s five filing fees.

Ruth Bader Ginsburg:

If — if —

John G. Roberts, Jr.:

Now, I don’t see how the Bureau of Prisons can do this as a matter of grace. I mean, the statute says what it says, “shall.” I don’t — I don’t know why think they can do — they may have their own views on what’s good policy, but Congress, it seems to me, has written the statute exactly the way you say.

Anthony F. Shelley:

I agree.

I agree with that. The only possibility is that alternative approach they say, where they stop after the first one goes below $10. But that one takes 100 percent of the income and helps us in proving the per-prisoner approach, because in most cases, where there’s any — any — any job or wage income being earned by the prisoner, you’re going to take 100 percent because the last 20 percent increment will be above the $10.

Stephen G. Breyer:

You can interpret it the other way, linguistically.

You say, you forward the 20 percent each time the amount in the account exceeds $10.

Well, the instant you write that check, you say, it — it does not exceed $10, and therefore you can’t forward it.

So you can’t write that kind of a check. I mean, isn’t that literally —

John G. Roberts, Jr.:

Well, it exceeds $10 until they cash the check.

Anthony F. Shelley:

I would agree with that.

Stephen G. Breyer:

Well, now we’re getting into the technicalities of banking — (Laughter.)

— which — so — so I — I — I think you can read it the way I suggested, if you’re not too technical about it.

It seems consistent with the language.

Antonin Scalia:

Does the Fed have a position on this that — that — that Chevron requires us to defer to?

Anthony F. Shelley:

No.

No Chevron deference here.

There’s no regulation.

There’s no guidance. It’s a statement in an adversary brief. But, Justice Breyer, I think that there are — there are a number of machinations that can be go — that can be gone through in order to defend this — this idea or that idea, and the government comes up with alternative ones that they’re not even using to try to deal with the plural filing fees, for instance. But our approach is much simpler.

Our approach is you read the statute the way it — the way it states a “shall.” You know, “shall the prisoner.” You don’t look to see if it’s — the payment’s going to be under $10 afterwards, but look to see if it’s over as a trigger and then pay. In addition, you don’t have a lot of other problems with our approach.

You just figure out which one was first, which one was second, which one was third.

Ruth Bader Ginsburg:

What happens — I think this — this — Mr. Bruce had multiple filings, right?

Anthony F. Shelley:

At this point, yes.

Ruth Bader Ginsburg:

Yes.

It’s something like — how many? 17?

Anthony F. Shelley:

19.

But — but the first —

Ruth Bader Ginsburg:

19.

Ruth Bader Ginsburg:

So it is — realistically, those later fees are never going to be paid, because he’s going to be released from prison somewhere along that chain.

Anthony F. Shelley:

First of all, Mr. Bruce didn’t incur — the last seven or so have not been filed, essentially because he had had three strikes by the 12th.

So there’s really only 12 lawsuits we’re — we’re talking about that could have filing fees. But the answer to the question, Justice Ginsburg, of whether he’s never going to pay those, again I would go back to 1995 and say Congress thought, well, they could be paid relatively quickly if the filing fees were lower. But you — you touch on a question that is unsettled in the lower courts, which is does the amount come due at the end of when the prisoner — when the prisoner sentence ends? And the courts of appeals are divided about that, with the Fifth Circuit saying, yes, it does come due, and you have to come up with some kind of a plan with each of the clerks to which you owe money, and you shall pay it off.

Other circuits say it is.

It does come due, but it only comes due and you have to pay it if you’re not in forma pauperis at the time the government seeks to collect it after you’re out — out of release. So I don’t think it’s correct to say, at least as a matter of law, it’s settled as to whether these filing fees forever go away once the prisoner — prisoner leaves prison. I had also started just talking about the difference — the different problems of the per-case approach that ours avoids.

And the, as I mentioned, the — the per-prisoner approach allows you to line up the fees one after another.

You just have to figure out which one was incurred first, second, third, fourth. But under their approach, what happens after the fifth one? You have five.

Takes 100 percent of income.

And at that point, well, the sixth one becomes our approach. If you have six, seven, eight, it then becomes the — the sequential approach that has all the problems they say our —

Ruth Bader Ginsburg:

I thought the government’s position was you can’t get blood out of a stone, so when it’s 100 percent, that’s it.

Sixth, seventh, eighth, we’ll just have to —

Anthony F. Shelley:

They stood in line.

What — the government says that — page 30 of their brief is that that gets deferred.

Deferred until one of them gets paid off.

So then you have to figure out, well, one of them got paid off, so which one do you switch in, and how much do you switch in? And it just — the problems start to multiply.

Antonin Scalia:

Why do you pick the earliest? I mean, all of them — all of them are owed. Why don’t you pick the nearest court?

Anthony F. Shelley:

Well, you could.

You could pick the nearest court; you could pick the last one, the most — the most —

Antonin Scalia:

Right.

Anthony F. Shelley:

— the most current. But the way the courts of appeals have looked at it, they’ve looked at, in time, the first. And I don’t think the government disagrees because, at least when you get to the sixth one, it’s — they — they treat that one as being deferred under their approach, with the first five being paid.

John G. Roberts, Jr.:

Is he on the hook for the filing fees here?

Anthony F. Shelley:

He is not.

He is not.

John G. Roberts, Jr.:

Why not?

Anthony F. Shelley:

I don’t understand the Court to apply the PLRA for its cert petitions, for instance. And in any event, I believe his filing fee was paid on — oh, he is — he is subject to a filing fee in this case, and he did pay it.

But I don’t understand the Court to apply the PLRA to cert petitions. One last point I wanted to make is that I think it is often thought that a prisoner who has 12 filing fees or 10 filing fees is a recidivist prisoner, but that’s not the case. As the — the Second Circuit noted in the Whitfield case, that single case produced five encumbrances.

It was a district court appeal, it was a district court case, a Second Circuit appeal.

There were two cost awards from the district court and the court of appeals, and there was a second appeal.

There were five encumbrances in one single piece of litigation.

So these encumbrances can add up quite quickly, and you can get up to five, seven, eight. And that case, it was a meritorious case, the Second Circuit said.

Anthony F. Shelley:

It wasn’t a frivolous case. The prisoner didn’t win, but it was — it was a case that wasn’t, as — as Justice Kagan used in the last argument, it wasn’t a laughing-stock case.

These were — it was a meritorious case in the sense that it was one that could be brought by any other American that the prisoner — that the prisoner brought. So I’d like to reserve the remainder of my time for rebuttal.

John G. Roberts, Jr.:

Thank you, counsel. Ms. Saharsky.

Nicole A. Saharsky:

Mr. Chief Justice, and may it please the Court: This statute is written from the perspective of a single case.

And what I mean by that is that for each action or appeal, it provides a list of things for the Court to do: To check for the affidavit of indigency, to check for three strikes, and as relevant here, to require full payment of filing fees on an installment schedule. So what we’re talking about here is Subsection (b), which is the filing fees provision, and it says, first, that an IFP prisoner has to pay the full amount of each action or appeal, talking about a single action or appeal, and then it sets out an installment plan, which is an initial payment and a monthly payment. So we’re at the point where Petitioner agrees that the initial payment is for each case, but the — he says that the statute somehow shifts perspective to all of an inmate’s cases when it starts talking about the monthly payments. And we just don’t think there’s any kind of clear explanation in the statute that does that.

We think the burden should be really on him to show a shift from a single case to all of the cases, and it wouldn’t make sense to do that. I think Justice Scalia made the point in this discussion that there just wouldn’t be any marginal deterrence if an inmate could file as many lawsuits as he wanted and not make any additional —

Stephen G. Breyer:

You say the word “fees.” What about the word “fees”? Does that show?

Nicole A. Saharsky:

Right.

What petitioner says is that the word “fees,” plural, always means more than one case.

And we know from the text of this statute that that’s not true, because there are several places where Congress says “fees” and it’s referring to a single case. So for example, in Subsection (b)(3), Congress talks about the amount of fees permitted by statute for a civil action or an appeal.

In (b)(1) it talks about any court fees required by law for an action or appeal.

Similarly, in (a)(1) and (a)(2) it talks about fees, plural, for a — a single action or a single appeal. And to be clear, we think that in this statute Congress used “fee” and “fees” somewhat interchangeably in the way that people do out in the world; that people would say “attorney’s fees,” “an attorney fee award,” “fee shifting,” “we’re shifting all the fees,” that sort of thing, that that’s just common usage, and that the single/plural fees in Subsection (b)(2) just does not provide the kind of strong indication that would be necessary to overcome the real thrust of the rest of the statute, which is that it’s something that a court does for each of these cases.

It sets out this payment plan; it does each of the other things that are set out in the statute.

John G. Roberts, Jr.:

Ms. Saharsky, I don’t — I can’t — I’m not terribly persuaded by your deterrence argument.

I mean, no statute pursues its purposes at every cost.

And maybe Congress decided they could — 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 anti-filing provisions in the law.

Nicole A. Saharsky:

Well, this is the only provision that provides a financial deterrent.

There are other provisions, like the three-strikes provisions, et cetera.

But this is the one, and this is in the record, where members of Congress said it makes an inmate stop and think, is this lawsuit worth the cost. And in the amount that —

John G. Roberts, Jr.:

Yes, but Congress is talking about, okay, they have to pay the filing fee. Certainly Congress didn’t focus, I wouldn’t think, on whether it’s — well, I assume they didn’t focus on whether it’s per case or per prisoner, because it’s really quite unclear.

Nicole A. Saharsky:

Well, we think that Congress did make that decision when it wrote the — the statute from a perspective of a single case.

Congress —

John G. Roberts, Jr.:

I wanted to talk about that.

I — the first reading, two struck me as different than one, because in — in one you’re talking about, oh, this is what the Court should do.

But on two you say this is what’s required of the prisoner, and it just says up to 20 percent. Now I know one says required two, but it immediately shifts its — he’s required to pay the whole thing, and that’s the important point.

But — but two, it says this is what’s required of the prisoner, monthly payments of 20 percent of the preceding month’s income.

Nicole A. Saharsky:

Right.

Towards —

John G. Roberts, Jr.:

To me that seems to be more a prisoner focus than a case-by-case.

Nicole A. Saharsky:

But it’s — it’s linked to Subsection (b)(1)

Nicole A. Saharsky:

This whole thing is talking about what happens in a — in a specific case.

It starts by saying the — “When a civil action or an appeal is filed, you shall pay the full amount of the filing fee, and here’s the way to do it.” And Subsection (b) then triggers — Subsection (b)(1) then triggers Subsection (b)(2). We think Judge Shreenavossen got this exactly right in the opinion for the D.C. Circuit where he said that when you start reading (b)(2), it is triggered from (b)(1), and it continues the per-case focus that it’s talking about, first we have an initial partial payment for one case, and then we have monthly payments to pay off the balance of that case. And that’s —

John G. Roberts, Jr.:

I’m not sure that’s responsive to my point.

I guess what I was saying is I don’t think it carries forward the case-by-case basis because it speaks solely of what’s required of the prisoner in a way that doesn’t address case by case at all.

I mean, that’s why this is such a confusing statute.

Nicole A. Saharsky:

Well, we think — the reason that we think it does, just to be clear as possible, is because of the language that starts Subsection (b)(2), which is, “After payment of the initial partial filing fee” — which is for one case — “then the prisoner is required to make monthly payments,” which is to pay the remaining amount because we know he has to pay the full amount for one case.

John G. Roberts, Jr.:

Of 20 percent of the preceding month’s income.

To me, I — well, I would think at least as reasonable as you’re reading, to say when you look at what is required of the prisoner, 20 percent of his income, that doesn’t have anything to do case by case, because what you would require, of course, is that he pay 40 percent if there are two cases, or 60 percent if there are three, or all of it, if it’s above $10.

And I think he — anyone — someone looking at that may say, no, he’s only supposed to pay 20 percent of his income.

Nicole A. Saharsky:

But this — this part of the statute, and all the parts of this statute, really, are talking about the perspective of a single case.

And we think the 20 percent makes sense in that regard, because as one member of Congress said — and this was quoted in the D.C. Circuit’s opinion — the filing fee of — of 20 percent is small enough not to deter a prisoner with a meritorious claim, but it’s large enough to deter frivolous claims or multiple filings. So the 20 percent essentially leaves room for multiple filings that you could apply at more than one time when a prisoner has a second case, a third case, a —

John G. Roberts, Jr.:

Well, yes, but he doesn’t get off the hook for the other ones.

It’s just — has to pay it further down, you know, it’s — it’s like a mortgage.

I mean, you get 30 years, you have to pay it further down.

If you’re on 15 years, you have to pay it less.

Nicole A. Saharsky:

Well, I think —

John G. Roberts, Jr.:

I mean, it’s not like he’s getting off Scott-free.

Nicole A. Saharsky:

Right.

I understand your question, but I think that there are a couple of problems with that.

One is that there’s nothing in the statute that suggests that you would delay the payments. And it doesn’t make sense in terms of the statutory purpose to delay them. As Judge Easterbrook’s opinion for the Seventh Circuit said, if you want to have a pay-as-you-go system where there’s an immediate cost to each individual case, the person needs to have an obligation to start paying right away, not five years in the future, or perhaps never.

John G. Roberts, Jr.:

Well, he pays the 20 percent in every case right away.

Nicole A. Saharsky:

Right.

But that’s a one-time payment, and it could be quite small.

And that’s very different from having an ongoing monthly payment that starts right away and that you have to pay. But I do want to address another — another point that I think your question raised, which is are prisoners ever going to be paying these amounts, particularly where they have filed numerous cases like the individual in this case.

And I think the answer is no, for two reasons.

The first is a practical one.

The second one is a legal one. I guess I’ll start with the legal one that numerous courts that have considered this issue have said that once a prisoner is out in the world and is no longer a prisoner but wants to continue his case, he can try to qualify for regular IFP status and no longer have to make his payments.

So potentially, he’s not making those payments. And regardless of how you would decide that legal —

John G. Roberts, Jr.:

You agree with that interpretation?

Nicole A. Saharsky:

It’s not something that we’ve taken a position on in this case.

John G. Roberts, Jr.:

Then I don’t think it’s fair to rely on it.

Nicole A. Saharsky:

Well, then I — I do think it’s fair to rely on it in light of the fact that no one is collecting — no one is — there’s not any centralized mechanism to collect now. And that’s really the second point that I wanted to make, which is regardless of how you would resolve that legal question, and actually the reason that the administrative office has not, so far as we know, taken a position on that, is because there are serious practical problems to collecting. One of those problems — when you — when you look at the statute, Subsection (b) allows you to take money from the trust accounts, so it’s fairly easy to collect while the individual is in prison.

But once the person is out in the world, courts — each individual court trying to collect filing fees that are — that the inmates — the former inmate’s on the hook for is quite a difficult thing. We have spoken with folks from the administrative office who tell us that there is not now any centralized system for trying to refer those obligations for treasury, and I think you could imagine how cumbersome that would be.

So to think that potentially paying five years down the road, or never paying is any kind of marginal deterrent I think would be wrong. We think that Congress knew that there were multiple filers out there, and that if they were going to file more lawsuits, they should pay more.

And just to be clear about what Congress was saying here, no one is precluded from going to court.

All Congress is saying is something very reasonable, which is if you have funds available and you continue filing more lawsuits and appeals, you should have to pay.

You should have to contribute.

And we think that that makes complete sense.

Elena Kagan:

Ms. Saharsky, can I get back to the $10 rule and the BOP policy with respect to this? I think it was the Chief Justice who said that he didn’t really understand.

And I share his lack of understanding about how the BOP is actually doing this, given the language of the statute. The statute says, you know, “shall forward payments each time the amount in the account exceeds $10.” So that suggests to me that if you’re looking at an account with $10 and 1 cent, you make the next payment.

And I understand from your brief that that’s not what the BOP is doing.

And how can the BOP be not doing that?

Nicole A. Saharsky:

Well, a — a couple of answers.

First of all, we think that that language that you — you cited can be read multiple ways, as I think the discussion with Justice Breyer perhaps suggested, that it could mean a $10 floor or it could mean that you start making payments at the $10 and then go below the $10. The BOP has long-standing — has taken the position, long-standing position, that you have a $10 floor that is not in any kind of regulation or published guidance.

The way that we do it is we have a database that is basically for inmate trust accounts.

It’s just an electronic system for having money coming in and out of the accounts.

And we have had that $10 floor in there since that database was set up in 2001.

But we think the statute could be read both ways, and we think it is more consistent with Congress’s intention to leave the $10 in —

Antonin Scalia:

Yes, that’s probably right. But how can it be read that way? Tell me how it can be read that way.

Nicole A. Saharsky:

Right.

Antonin Scalia:

You’re saying you can’t touch $10.

In — in all cases, $10 will always remain in the account.

How can you read it that way?

Nicole A. Saharsky:

Well, because when it says “exceeds $10,” I think you could — you could read it as that it can’t — kind of the flip side, that you can’t go below the $10.

Or you could say that you could start at the —

Antonin Scalia:

Just read the language. Read the language.

What — what language produces that result?

Nicole A. Saharsky:

Right.

We think that it is — when you say it exceeds $10 that that means that you can’t — there’s the flip side of it that you can’t go below $10.

But to be —

Antonin Scalia:

That doesn’t follow.

It — it says you can take 20 percent if the account exceeds $10.

If the account exceeds $10, you take 20 percent of the account.

Nicole A. Saharsky:

Well, Justice Scalia —

Antonin Scalia:

That’s what it says.

Nicole A. Saharsky:

Right.

If — if you — we think that it can read both ways, but this is — if you disagreed about that, we don’t think that that issue resolves this case for a number —

Stephen G. Breyer:

Anyway, why can’t you read it that way? You forward the payment each time the amount exceeds $10.

Forwarding it consists of pressing an electronic button.

And so the instant you press that button, it does not exceed $10.

And there we have it. So there is a way of construing the language which is consistent with the obvious purpose to me, which is to leave this prisoner with at least $10.

Nicole A. Saharsky:

Well, that’s what we think. We think it can be read multiple ways.

And so far as we know about the experience, it has been read multiple ways.

There are cases in the courts of appeals that have read it one way versus the other.

To be clear though, these cases not ones that have gone through any detailed statutory analysis, not even as much detail as this Court’s discussion at argument today, but have just said in an offhand line either you can go below the $10 or can’t.

They’ve kind of gone both ways on that. And in terms of experience, we know from Second Circuit’s case that’s cited in the briefs, Whitfield, that New York did not go below the $10.

I asked counsel of record for the States.

The States filed a brief on our side of this case, and — and the counsel of record is the Solicitor General of Michigan. He said that Michigan does not go below the $10.

My friend on the other side has suggested —

Sonia Sotomayor:

But does all of this by all of the States, all of the prisons? Because your adversary says that some are going below the $10.

Nicole A. Saharsky:

I’m not sure that that’s true.

He cites two cases.

One is — they’re from Maryland and from Iowa.

One of the cases said that there was — that it went below the $10 in a — in one case.

But it didn’t say that was the State policy. I — you know, I don’t know if it was. And then the second was an individual accounting clerk who had gone below the $10 and who had done it manually.

So I don’t know that that represents any kind of policy either. But if I could step back, I think it is not necessary for this Court to resolve the $10 issue to resolve the question presented, because the question is should an inmate who files more cases have to make monthly payments? And just as — and just parenthetically to highlight why the Court doesn’t need to resolve the $10 issue to resolve this case, this was not an issue that Petitioner briefed before the D.C. Circuit.

It’s not anything that the D.C. Circuit’s opinion addressed.

And it’s not something that was in the certiorari petition. So why —

Antonin Scalia:

And that issue could come up in the very first payment, couldn’t it? If the guy has $10 and 1 cent in his account, the very first payment could raise that issue.

Nicole A. Saharsky:

Yes, that’s true.

Antonin Scalia:

So it’s not an issue presented by the — by the question of whether you use the per-case or per-prisoner approach.

Nicole A. Saharsky:

I completely agree.

Antonin Scalia:

It’s a problem either way.

Nicole A. Saharsky:

However you resolve the question presented, that would still be a separate question, one that the courts of appeals have not considered in any level of detail. The extent —

John G. Roberts, Jr.:

Ms. Saharsky, I find — I — I think others may too.

I find the issue that’s before us very difficult to resolve based on the statutory language.

Is there any doctrine tantamount to the rule of lenity in interpreting a criminal statute that applies here? Because the thing that strikes me most is the extreme harshness of your 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. And you seem to be willing to interpret the ambiguity in the statute to save the last $10, but you’re unwilling to interpret what I think at least I regard as the ambiguity in the statute to allow prisoners — I mean, they are prisoners.

They’re not — that’s perhaps not entitled to any grace, but who in some States earn 10 cents an hour.

You’re not willing to interpret that ambiguity in a way that allows them to keep that so they can pay for phone calls to their family.

Nicole A. Saharsky:

Well, a couple of answers. First of all, we think that this is not — this — this question of a person having so little in their money — money in their the account only arises in the case that you’re talking about someone who has filed five or more lawsuits, which is not the ordinary case.

I mean, it is obviously a case to consider.

But at least in the BOP’s experience, the vast majority of people who have orders owed are for one lawsuit, two lawsuits.

Most of the court of appeals’ cases below are like that, et cetera. Putting that to the side, of course, this statute never prevents a prisoner from bringing a meritorious case because of the safety-valve provision. We also interpret the $10 amount to leave money in the account. There’s also, of course, administrative remedies, which administrative exhaustion is required. So that helps resolve any questions about making sure that claims are heard.

And, in fact, the BOP does have the discretion to allow phone calls, et cetera, to indigent prisoner, also stamps, et cetera, et cetera. So in terms of what you potentially perceive as harshness, this only arises in cases where an inmate is filing so many cases, that potentially a large portion of his income used to pay filing fees.

And really that’s —

John G. Roberts, Jr.:

Just a thought. Well, if you’re there for 20 years, maybe you should let them buy a book.

Nicole A. Saharsky:

Right.

And this — again, this situation there — I think most prisons actually have libraries that books are available.

And like the Court has had some cases about what libraries —

John G. Roberts, Jr.:

I’m sure they are — I’m sure they are very good libraries, too.

Nicole A. Saharsky:

Well, just — just to be clear, you know, this is a situation that only arises in the fairly atypical situation.

We — it’s true that the statute does not specifically address the — the situation of a prisoner with five lawsuits or six lawsuits and orders et cetera.

But we think the reason that that is and that the Seventh Circuit suggested in one of the early opinions after PLRA was enacted is because Congress thought that the three — three-strikes provision was going to prevent all of these lawsuits, but it —

Antonin Scalia:

Do a lot of prisoners buy books? I mean, does Amazon really make a lot of money off these people?

Nicole A. Saharsky:

I can’t say, you know —

Antonin Scalia:

I don’t think —

Nicole A. Saharsky:

— the experience that we have in this case, for example, might be good to highlight, which is Pinson, the individual who has filed more than a hundred cases — gets regular deposits into his account, had been using them to buy books and other materials.

Nicole A. Saharsky:

Those are in the Joint Appendix starting on pages 55, 56, et cetera.

So it shows that prisoners are able to — even Pinson who has filed over a hundred cases is able to — to pay those amounts. And just to — just to clarify, I think the Court is thinking of a situation of, you know, a prisoner who has 10 cents of income or $10 of income. But we don’t think that that is the typical situation. Pinson’s account at the time he filed showed that he received an average of — I think it was $48 a month of income.

I have asked the BOP for statistics just because I was curious about what is the median income that’s received, what is the median deposit.

They said that for the — the past fiscal year, the median — median income an inmate receives is approximately $120 a month.

So, in fact, with that, if an inmate has 20 percent that he’s paying towards filing fees, he could pay them off at a reasonable rate.

And we think that that’s just really a much better alternative from what Congress intended.

Elena Kagan:

But that does raise — I mean, as Mr. Shelley says, using that exact $50 number. If you have $50 and you have five lawsuits, the $50 is gone, assuming that the BOP’s policy is not uniform and maybe is not statutorily authorized.

Nicole A. Saharsky:

Yes, I think that — I think that that is the implication of it, and we think that that is what Congress intended. I am not sure if the Court is interested in such information, but we actually did go ahead and just look in our database to see how many inmates have one PLRA order that they’re paying as opposed to five orders that we’re paying.

And what we found, just checking last week, was that inmates — there are 944 inmates of the over 200,000 in the federal system who are paying on one order, and only 60 inmates of the over 200,000 who are paying on five or more orders or who had six, and then 42 inmates who have six or more orders. So this actually is a — a very small problem, at least federally, and we would not want this very small tail to wag the dog of this statute that is clearly — clearly intended by Congress to make sure that inmates who are filing frivolous lawsuits have a financial disincentive to do so.

And —

Sonia Sotomayor:

Be clear about your policy.

And I think your adversary agrees.

Under (a), the 20 percent has to be paid on all five cases whether the amount is above 10 or — the amount in the account is above 10 or below 10, correct?

Nicole A. Saharsky:

Correct.

Sonia Sotomayor:

So those five cases would always wipe out the $10.

Nicole A. Saharsky:

The $10 is not an impediment to the initial partial filing fee.

It is only in the second part of it.

That —

Sonia Sotomayor:

So — and so the $10 floor starts once the account goes up — you have to — a bottom.

You have always $10 in your account, but any dollar that goes into your account after that, 20 percent has to be paid.

Nicole A. Saharsky:

Right.

Be we think — assuming that it’s over the $10.

But we think that — that there’s a — you know, that there’s at least $10 in the account or would wait until there was $10 in the account.

So if I’m understanding your question correctly, we would wait until there was $10 in the account as just a matter of —

Sonia Sotomayor:

But you would take 20 percent.

Let’s say there’s $10 and — there’s $11. The one extra dollar is paid to whom?

Nicole A. Saharsky:

To —

Sonia Sotomayor:

Let’s assume there’s five cases there.

Nicole A. Saharsky:

We would — if we can’t pay all of the five cases, as we believe Congress intended, we would pay the oldest lawsuit.

The oldest — and — and — and I don’t mean that by filing date.

Nicole A. Saharsky:

I mean the oldest order that was —

Sonia Sotomayor:

Would take that entire $1?

Nicole A. Saharsky:

Yes.

Because the statute says to pay 20 percent per case, so we would try to do the closest thing that we — we could to that. And as Justice Ginsburg said, you can’t get blood out of a stone.

There comes a point at which, if there’s not funds, we can’t pay.

But as we understand the statute, and we think it makes perfect sense in terms of what Congress wanted, if you have money available and you continue to file more lawsuits and get orders entered, that you — the inmate should have to pay for them. So at the end of the day, we think that the D.C. Circuit got it right, that both when you look at the specific text of this provision, which is Subsection (b) about filing fees but really the entire statute written from the perspective of a single case, a checklist for a single case, that Congress wanted inmates who were filing more lawsuits to pay more. And we think that that makes sense and that also — and I want — this is, I think, a partial answer to one of the prior questions of the Chief Justice in terms of interpretative canons, etc., that it’s consistent with what this Court did last term in the Coleman case. In the Coleman case the Court was considering the three-strikes provision, but it recognized that that provision is written from the perspective of a single case, a single action, or appeal.

You could get a strike for the action.

You could get a strike for the appeal. And the same thing we think is true for the filing fees.

You could owe the filing fees for the action.

You could owe the filing fees for the appeal. And we think that that makes complete sense. So unless there are further questions, we would urge the Court to affirm the decision of the D.C. Circuit.

John G. Roberts, Jr.:

Thank you, counsel. Oh, you have four minutes remaining.

Anthony F. Shelley:

Thank you, Mr. Chief Justice. First of all, with respect to the — the hypothetical that Justice Sotomayor asked, in fact, I think if the account had $11 in it, the government’s position would lead to none of the clerks of the courts being paid because the first payment would take the — the balance under $10.

So that seems, again, as a number of justices have mentioned, other than Justice Breyer, a perverse reading of the $10 rule. But I also want to take on the idea that this is the only provision in the statute that provides for a financial effect on the prisoner when filing a lawsuit.

No — as the Chief Justice mentioned, the initial partial filing fee applies in every case.

No $10 rule.

No minimum. So that is a — an immediate financial incentive not to file a frivolous lawsuit because money is going to go immediately.

And if it doesn’t go immediately, it’s a debt that gets paid sequentially, much like the per-prisoner approach would adopt for (b)(2)

But (b)(2) then takes a longer-term point of view.

(b)(1) is an immediate financial disincentive. (b)(2) is the longer financial disincentive month after month with the installment payments. I also want to take on the idea that “fees” and “filing fee” appear interchangeably in the statute. They do not.

Ms. Saharsky mentioned the word “fees,” but “fees” unadorned with the word “filing” in front of it appears differently than does the word “filing fees.” The plural “filing fees” appears in exactly two spots: (b)(2)

And then in the cross-reference to the cost section, I believe it’s (f) — in the (f) section where it says that costs shall be charged the same way as filing fees.

They both use the plural “filing fees.” So this was purposeful.

Congress used the plural “filing fees” only twice.

And that’s because, I think, they were talking about the — the numerous cases being paid to a single clerk. And finally, I’d like to say, it has often been said that the measure of a society is not how it treats it’s outstanding citizens but how it treats weakest. Here there’s no — it’s criminals.

Here there’s no real reason to pile on to prisoners with this additional onerous financial incentive when the other aspects of the PLRA do the work of deterring frivolous lawsuits along with the disincentive that’s provided under the per-prisoner approach. We would ask that the Court reverse the D.C. Circuit.

John G. Roberts, Jr.:

Thank you, counsel. The case is submitted.