Samarripa v. Ormond

• Decision Date: 04 March 2019
• Docket Number: Nos: 17-6048/6166/6213/6260/6299/6333,s: 17-6048/6166/6213/6260/6299/6333
• Citation: 917 F.3d 515
• Parties: David SAMARRIPA (17-6048/6260); Stephon Mason (17-6166); Jose Adrian Hernandez (17-6213); Arnulfo Torres Perez (17-6299); Timmie D. Cole, SR. (17-6333), Petitioners-Appellants, v. J. Ray ORMOND, Warden, Respondent-Appellee.
• Court: U.S. Court of Appeals — Sixth Circuit

917 F.3d 515

David SAMARRIPA (17-6048/6260); Stephon Mason (17-6166); Jose Adrian Hernandez (17-6213); Arnulfo Torres Perez (17-6299); Timmie D. Cole, SR. (17-6333), Petitioners-Appellants,

v.J. Ray ORMOND, Warden, Respondent-Appellee.

Nos: 17-6048/6166/6213/6260/6299/6333

United States Court of Appeals, Sixth Circuit.

Argued: January 30, 2019

Decided and Filed: March 4, 2019

ARGUED: Katherine B. Wellington, HOGAN LOVELLS US LLP, Washington, D.C., for Appellants. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. James R. Saywell, JONES DAY, Cleveland, Ohio, as Amicus Curiae. ON BRIEF: Katherine B. Wellington, HOGAN LOVELLS US LLP, Washington, D.C., for Appellants. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE, Washington, D.C., for Appellee. James R. Saywell, JONES DAY, Cleveland, Ohio, as Amicus Curiae.

Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.

SUTTON, Circuit Judge.

Indigent individuals may seek permission in the district court to appeal adverse judgments without prepayment of appellate filing fees. At issue in today’s five consolidated cases, each filed under 28 U.S.C. § 2241, is whether district courts may grant such motions in part by requiring litigants to prepay some, but not all, of the $505 appellate court filing fee. The law at issue says that a federal court "may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees" by a person who "is unable to pay such fees." 28 U.S.C. § 1915(a)(1). Nothing about this language deprives a district court of discretion to require partial prepayment of appellate filing fees, and nothing about it alters the pre-1996-amendment practice of doing just that. For these reasons and those elaborated below, we agree with the district courts’ partial fee rulings.

I.

David Samarripa, Stephon Mason, Jose Hernandez, Arnulfo Perez, and Timmie Cole—federal prisoners all—filed petitions for a writ of habeas corpus under 28 U.S.C. § 2241, arguing that their respective sentences are too long under federal law. All five men paid the $5 habeas filing fee in the district court. Id. § 1914(a). And each of them lost his petition on the merits. Each man filed a timely notice of appeal and a motion to proceed as a pauper on appeal, seeking to avoid prepaying the $505 appellate filing fee. Id. §§ 1913, 1917. After examining each petitioner’s financial status, the district courts granted the motions in part under § 1915(a)(1), requiring each petitioner to make a one-time, partial prepayment of the fee: $50 for Samarripa and Cole, $350 for Hernandez, and $400 for Mason and Perez.

Each of them renewed his motion in this court, in effect challenging the district courts’ determinations. See Fed. R. App. P. 24(a)(5) and advisory committee’s note. We consolidated the five motions to consider whether federal courts have the statutory authority to require petitioners to prepay a partial filing fee on appeal of a § 2241 petition. We appointed Katherine Wellington to represent the claimants pro bono.

Before this court, the claimants and the government agreed that the district courts had no such authority. We appointed James Saywell as amicus curiae to file a brief in defense of the district courts’ orders. Both Ms. Wellington and Mr. Saywell ably handled their appointments, for which we are grateful.

II.

At stake is whether the law permits partial prepayment of fees or requires an all-or-nothing-at-all approach. The text of § 1915(a)(1) says: "[A]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees or security therefor, by a person," based on the court’s review of the person’s assets and claim. (Emphasis added). The key language—"may authorize" and "without prepayment of fees"—does not answer the question. A court that excuses all fees or some fees still allows a filing "without prepayment of fees." Ample room for clarification exists in either direction. Had the law said that courts "shall authorize" litigants to proceed "without prepayment of any fees," that would clarify that courts face a $505 or a $0 option with nothing in between. Had the law said that courts "may" allow litigants to proceed "without prepayment of some or all fees," that would clarify that courts could permit partial prepayments depending on the person’s particular financial situation. Absent more textual guidance from these words alone, we must keep looking.

Pulling back the lens offers some guidance. The clause immediately following the key language ("without prepayment of fees or security therefor ") implies that courts may require litigants to post something as security for the filing fees in an appropriate case. Security for costs falls within a court’s broad discretion. See United States v. Ames , 99 U.S. 35, 36, 25 L.Ed. 295 (1878) ; Aggarwal v. Ponce Sch. of Med. , 745 F.2d 723, 726–27 (1st Cir. 1984). It would be strange, we think, to pair a non-discretionary item with an eminently discretionary one. The pairing suggests that the same kind of discretion that accompanies "security" decisions applies to "prepayment of fees" decisions.

As for the other relevant provision, Appellate Rule 24, it does not answer the question either way. In setting out a procedure for seeking pauper status on appeal, it tells the party to file the motion in the district court. If the court grants the motion, the party may proceed as a pauper on appeal without prepayment. Fed. R. App. P. 24(a)(2). If the district court denies the motion, the party may file the motion in the court of appeals, in effect challenging the district court’s decision. Id. 24(a)(5). The Rule contemplates granting or denying these motions. Id. 24(a)(2). But it does not rule in or rule out discretion in between.

History helps. By the time Congress amended the pauper statute in 1996, every circuit to address the issue had held that § 1915(a) —in place since 1892—allowed courts to require parties to prepay part of the filing fees. In re Epps , 888 F.2d 964, 967 (2d Cir. 1989) ; Bullock v. Suomela , 710 F.2d 102, 103 (3d Cir. 1983) ; Evans v. Croom , 650 F.2d 521, 524–25 (4th Cir. 1981) ; Williams v. Estelle , 681 F.2d 946, 947 (5th Cir. 1982) (per curiam); McMurray v. McWherter , 19 F.3d 1433 (6th Cir. 1994) (unpublished table decision); Lumbert v. Ill. Dep’t of Corr. , 827 F.2d 257, 259–60 (7th Cir. 1987) ; In re Williamson , 786 F.2d 1336, 1338 (8th Cir. 1986) ; Olivares v. Marshall , 59 F.3d 109, 111 (9th Cir. 1995) ; Stack v. Stewart , 82 F.3d 426 (10th Cir. 1996) (unpublished table decision); Collier v. Tatum , 722 F.2d 653, 655 (11th Cir. 1983). Noting the breadth of discretion in the statute’s terms, the courts construed the broad power to waive any prepayment of all fees to encompass the lesser power to waive prepayment of some fees. See, e.g. , In re Epps , 888 F.2d at 967 ; Olivares , 59 F.3d at 111.

When Congress amended the statute in 1996, it did not meaningfully change the text of § 1915(a)(1). That reality permits the inference that Congress did not wish to change what had become a uniform practice of permitting courts to require indigent litigants to prepay some but not all of the fee.

Context offers another clue, and it too arose from the 1996 amendments. Just as important as what Congress did not do in 1996 is something it did do: It enacted the Prison Litigation Reform Act. In the PLRA, Congress took away judicial discretion when prisoners bring civil suits or file appeals. In those cases, "the prisoner shall be required to pay the full amount of a filing fee." 28 U.S.C. § 1915(b)(1). The court must assess an initial fee calculated as 20% of either the average monthly deposits to the prisoner’s account or the average balance in the account over the previous six months. Id. § 1915(b)(1)(A), (B). Prisoners then make precise monthly payments until they pay the fee in full. Id. § 1915(b)(2). Congress’s limit of discretion in this one area, while leaving § 1915(a)(1) substantially the same, suggests no alteration to the court’s discretion to require partial prepayment in other cases under § 1915(a)(1). And Congress’s decision to clamp down on judicial discretion in one area of prisoner litigation while leaving untouched plenty of discretion in another area suggests an intentional choice. Different language about a similar topic suggests a difference in meaning. Gross v. FBL Fin. Servs., Inc. , 557 U.S. 167, 174–75, 129 S.Ct. 2343, 174 L.Ed.2d 119 (2009).

What happens with costs at the end of a case provides another contextual clue about what should happen with filing fees at the beginning of a case. Section 1915(f)(1) provides that "[j]udgment may be rendered for costs at the conclusion of the suit or action as in other proceedings." The general costs statute, 28 U.S.C. § 1920, says that a court "may tax" certain items "as costs." Courts consider several equitable factors to guide their discretion in determining the propriety and amount of that assessment. See Singleton v. Smith , 241 F.3d 534, 539–40 (6th Cir. 2001). That means courts have discretion to assess costs, including filing fees, against losing litigants after the case even if those litigants proceed as paupers. Id. at 539–41. No court to our knowledge has interpreted this statute to limit district court discretion to an all-costs-or-no-costs-at-all inquiry. If Congress gives courts broad discretion over fees on the back end of a pauper’s case (and over cost assessments in general), it’s fair to infer that it wishes equally permissive language on the front end of a pauper’s case to be read in a like way. When asked "who decides" fee requirements for paupers within the statutory range, Congress answered "courts" and gave them ample discretion to see it through from the beginning to the end of the case.

When faced with this issue,...