# Oral argument — Siluk v. Merwin > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/argument%3A864 ## Record - **Collection:** Oral argument - **Document type:** Oral argument - **Published:** May 21, 2014 ## Text Good morning, may it please the court. I'm Paige Forster morning, and I represent appellant Michael Silek jr I'd like to reserve two minutes of my time for rebuttal And I'll assume that's granted Congress struck a balance when it enacted the Prison Litigation Reform Act on the one hand There's a modest financial consequence that causes prisoners to stop and think before filing a lawsuit Particularly a frivolous one and on the other hand Congress ensured that no prisoner would be financially incapacitated by his or her filing fees Congress decided not to enact a consequence so severe as to deter meritorious claims paying off filing fees sequentially preserves the balance the Congress struck and paying them off simultaneously as the government advocates would throw that balance out of Whack and it would also prevent prisoners from buying necessary items like phone calls and stamps for communication with family How is the prisoner any different than any other person who might have to manage their checkbook and say I can't file The all these lawsuits right now. I'll have to wait or not do it I think that your question judge Chigaris actually gets to the heart of that balance because Congress did want to make Prisoner IFP litigants more like every other litigant can I afford this lawsuit is my claim strong enough to make it worth it to go forward, but I think the important other side of the coin that Congress also kept in mind was the Vanishingly small amounts of money that are at stake. I would venture to say this might be the first case in a long time that The judges have been reading briefs about Fighting over an $8 payment versus a $16 payment my client earns about $50 a month You know 8 versus 16 10 versus 20 is a really big deal to him and it's because I'll be in the 1% of the prison Population is $50 a month is a hefty income for inmates. I believe I wouldn't be surprised if that were true your honor I don't have the data, but yes, I think I agree with that No, I was just going to say that the the plain text of the PLRA represent reflects the balance the Congress struck section 19 we get into that what about the government's response to that that the prison situation is rather unique because there's an Obligation to make sure that he is furnished with the necessities of life So he's not going to go out to go without the quote necessities of life in any event It's true that he is constitutionally entitled to the necessities of life Under the Eighth Amendment, but it's also true that That all prisons are administered in vastly different ways, you know in this case This court is not concerned with a single agency or a single body. There are state and federal prisons That have different systems frankly for making sure that the necessities of life are met and those systems can have loopholes and can have problems and litigation before this court and other courts demonstrates as much and just to say that the find that the necessities of life are taken care of is not to say that the balance Congress struck is not one that that honors both the small amounts of money at stake and Along the lines with the chief judge just said, you know As you know, the the Constitution doesn't mandate comfortable prisons and it sounds like we're talking about this gentleman's comfort Is he gonna have enough things to buy the other stuff that he wants then maybe there's some of the non necessities Is that isn't that exactly the same as everybody else in society? I mean, I might not be able to buy, you know dinner out on Saturday night if I do something else Why is your client different or why is an inmate different? I think an inmate is different first of all because of the extremely low wages He earns if he doesn't need to have a job. I think that's different. I think that he's also different because He Because he The things that he's buying at the commissary are not all luxuries, they're not all for paris We're not talking about I mean, yes I think a prisoner can buy a candy bar at the commissary but frankly a prisoner also needs to buy phone time needs to buy stamps to correspond with his family and Needs to buy his soap and his shampoo and his razors and that's what my client brought to this court's attention in this pro se Emotion was those necessities that he needs to be able to provide for himself and not Could I interrupt you just a moment? the questions that you've been answering Are certainly highly relevant here and they are probably most significant in the decision that What I'm curious about doesn't the statute which provides For Taking any of his money To be used for filing fees doesn't the statute give us any indication as to whether it should be taken Sequentially or simultaneously Yes, your honor, I believe it does and I think you can first look at the statute what part of the statute indicates that as you are Appearing here today that we should look at a sequential taking rather than a In section 1915 b2 Which is the monthly filing fee provision the first sentence of that of that subsection? Directs that the prisoner the prisoner shall be required to make monthly payments of 20% of the preceding month's income Full stop he is required to pay 20% He's not required to pay more the second sentence of section 1915 b2 Directs the prison to forward the payments to the clerk of the courts until the filing fees are paid and That second sentence doesn't modify or expand the first sentence the first sentence contains the prisoners obligation And it is a 20% obligation and also when considering the plain text of the statute of course the court does consider all of the provisions of the statute together and And that's where the Supreme Court's observation in Skinner v. Switzer becomes important that Congress didn't just center its efforts on 1915 b2 and the monthly filing fee to deter merit Frivolous litigation it had a series of controls that work in different ways including the administrative exhaustion requirement That's codified elsewhere and also the three strikes provision and the ability of the court to dismiss at any time Yes, but those cases do not indicate what happens when a prisoner starts for instance in California He has to pay 20% as you say for of the monies that he is earned for a filing fee and then he's transferred to Lewisburg in Pennsylvania and while he's in Lewisburg something else occurs, and he starts another he starts a suit and There he's got to pay 20% as well does he not as the initial partial filing fee under b1. Yes, he does Now suppose he loses the case in California while the case in Pennsylvania is still pending And he takes an appeal Does he have to pay a filing fee for the appeal Yes, because that's under section 1915 b1 and that is a filing fee for each case And how much would he be taking out there and then at that stage that may not be the end of it, right? So once he files the first lawsuit when he's in California after that initial partial filing fee under b1 Which is 20% of the previous six months income or balance, whichever is greater After and he pays that if the money's available and not if it isn't but after that is or is not paid according to whether Funds are available. He'll be at a steady 20% in all the succeeding months Then the month that he would file his second lawsuit in Lewisburg again section 1915 b1 would come into play and the court would look at the prior six months of income and balance and Assess a filing fee if it's there and in that month There will be an initial partial filing fee if the funds are available as well as the continuing 20% per month So the 20% would continue each month with the month of a filing bringing a section b1 Initial partial filing fee which is paid if the funds are available Your argument is right. Why would Congress require all of the Filing free up front the initial phone. Why require that up front because that seems to get into the same kind of Of concerns that you're arguing. We should use to interpret this as setting up a sequential scheme So you're talking about the section b1 initial partial filing fee. Why? What sense if you can integrate b1 and b2 together this b1 suggests that Congress in fact didn't care wasn't as concerned about The kinds of considerations you're talking about and how we interpret this. I think b1 Reflects Congress's concern that prisoners have to be assessed to figure out whether they can pay and if so What is that amount and that's the 20% calculation based on the prior six months? But Congress was also deeply concerned that the suit go forward that the suit be filed and in fact There is section b4 Speaks to this specifically in no event shall a prisoner be prohibited from bringing an action or appeal Because he has no assets or means so that reinforces section b1 that 20% is paid If the funds are available period it's paid or not before almost sounds like a in my old firm We would call the CYA memo. I mean, what does it mean if the person? ends up filing a lot of lawsuits, let's say three and Going down the road no matter how you interpret this does not have the fees in the account To make whatever installment would be due in a given period Does that mean that the court would do the clerk's office of that court could? Dismiss the suit for failure to pay a fee or with the payment of the fee be suspended Until the account has enough in it no matter which whether it's sequential or or not To be clear. I don't my client doesn't have a position on b1 specifically because that's not what's at issue in the motion but what I think about Right, right and what what I what I see in the plaintext of b1 is that the Warden gets the six months prior balance does the math It looks what's 20% of the six months prior balance or income and then looks in the account It does does that amount of dollars exist if yes pay if no the initial partial filing fee only the b1 filing fee Is not collected because it's not there and we see that in both b1 Which says one funds exist and we also see it in b4 Which says his suits going to go forward whether you can collect that initial partial filing fee or not And I think b4 and b1 actually work together in that way Specifying yes Try to collect a fee if it's there if it's not the complaint gets filed and the suit goes forward and then you're in the world of b2 So I don't I don't think it is necessarily a CYA. Although I guess it could be seen that way I think it works together to make sure that the suits get docketed and filed Well, have you figured out miss Foster the governance position in a case of multiple actions that are brought and multiple appeals does the statute direct or Even implicate how the finances should for filing fees It should be implemented Are you talking about the initial b1 partial filing fee or at each month in the Hypothetical that I posited to you just a few weeks ago if that was to continue and there was to be an appeal from a dismissal in Pennsylvania as well that would make four actions and If that continued up to the Supreme Court After a remand and a continuation would What do you think the government would do when it ran out of money when the prisoner ran out of money Right because in fact, it's very easy to get to five encumbrances and the fees are another encumbrance The the filing fees and the appeals and the district court filing fees in the appellate court So anyway, the point being yes, it's very easy to get to five fees and no matter what this court says More than 100% cannot be withdrawn from a prisoner's trust account in any given month. So the government actually finds itself quickly in the place of having to put filing fees and charges in line one behind the other and so this idea that That my clients reading of the statute is impermissible because not all the filing fees would be paid at once and some courts would have To wait that same exact thing would be happening under the government's reading of the statute as well. Once that five fees gets hit and exceeded Thank you. Thank you I reserve two time two minutes You May it please the court Jeff Sandberg for the United States Congress enacted the filing fee provisions of PLRA to create economic disincentives to unmeritorious prisoner litigation The statute doesn't just mandate payment of filing fees though It also specifies a detailed process and timetable by which the fee is to be collected Sure so subsection B of the statute contains the filing fee provisions and there's two phases to the process for collecting a filing fee for Quote every civil act or sorry Quote civil action or or appeal that a prisoner might bring now You've just heard plaintiff readily agree that the first phase of this process applies on a per case basis if you file an Action or appeal then you pay a fee Well, it stands to reason that the second phase of the two-phase process would also occur in the same way unless Congress, you know, clearly indicated otherwise Judge Garth and the chief both were discussing them. What if what if what if there's no money left? Let's say you want to take an appeal and there's not enough to cover the initial part of the filing The case goes forward on subsection B to contains a separate The same would be what if he filed another suit and you know And what happens is a matter of court administration you wait until he eventually gets money in or do you know both both? both of the the two kinds of fees that are collected under the statute both the initial partial filing fee and the subsequent monthly payments are only made to the extent and precisely to the extent that the prisoner has resources available to do so and Subsection b2 only comes into play when a prisoner has an amount in the account that exceeds $10 so if a prisoner after deducting the first of you know Three possible filing fees for a month if that would take the if after the first Payment of the fee there would no longer be an amount in the account excessive $10 And the prisoner would not pay the second or third that month I'm focusing more on the initial filing fee. Okay, which is probably one What if there's not enough money in there for the initial filing? 50 cents in there and the initial filing fees is obviously quite more quite a lot more than that What happens the case goes forward Congress only wanted Congress didn't want to prevent cases from going forward It only intended for the collection of filing fees to the extent there are funds available and and as my opposing colleague pointed out b1 and b4 make that very clear in the initial partial filing fee context and what I was hoping to add to that conversation is that b2 also Provides that funds are only collected to the extent that the prisoner has resources in excess of $10 with which to pay multiple filing fees So judge should get us your questions earlier about you know It aren't the necessities provided for and aren't we just talking about discretionary spending? That's right We're talking about a prisoner having to choose When he's think when there's already a case pending in court and he's thinking am I gonna file a second or third or fourth? lawsuit the question is am I am I willing to spend a little bit more each month out of my income to pay for that second or third lawsuit and if the answer Is no, then the lawsuit should not be filed and the government's Seems to me that no matter which interpretation is correct. There's a disincentive to file multiple lawsuits The issue is how big is that disincentive? Is it a prairie knife or is it a meat cleaver? That's that's true But we know from the statute that Congress didn't just want and it won a one-time upfront fee for each case, right? It wasn't just to take the median prisoner in the federal system For example, the median prisoner has an account balance of $50. So an initial partial filing fee would be about $10 For the median prisoner Congress didn't just have a one-time $10 fee. It had an ongoing monthly fee So, you know it what we're talking here about a second or third or fourth lawsuit If if if the other side's proposed approach to the statute were adopted the second or third or fourth lawsuit would essentially come at an Immediate discount. Yes, you would still have to pay the full filing fee But you wouldn't start making monthly payments for the second or third or fourth case until for the median prisoner five and a half years in the future Eventually eventually assuming you're still in prison and and the The prison is still able to deduct money from your account And I know there's a question about what happens when a prisoner is released from prison But you know subsection b2 only works while there's an agency having custody of the prisoner to deduct the funds So our concern is the government is that there may very well be prisoners who think that it's worth it Seven or eight dollars to them to file a lawsuit that might turn the table on a prison guard who they're unhappy with or maybe They're a recreational litigant who enjoys litigation and it's worth it to them But if they have to pay an additional, you know quantum each month on an ongoing basis we think that that may have a deterrent effect and and I actually don't understand plaintiff to be disagreeing with this point because Plaintiff's own brief I think acknowledges On page 15. I think it is that this isn't you know, this very question is important. Mr Slavik precisely because he wants to know You know He wants to be able to accurately assess the seriousness of his claims against the financial consequences of filing suit And so just as a common-sense matter Congress was really concerned about deterring multiple filings by prisoners and again, that's true no matter which interpretation is correct There is some deterrence here. The issue is the size of the turn. That's that's true but you know if there's no there's no basis in the text of the statute to suggest that Congress intended for the deterrent effect to be smaller for a Third or a fourth or a fifth or a twentieth lawsuit then for the first one and again Mr. Sandberg if I could interrupt you for just a moment. I Don't recall your having told me what the government proposes Instead of what? Mr. So it proposes in the way of Filing fees. Can you in a sentence you do tell me what the government? position would be in the hypothetical that I mentioned to you of the two actions coast coast wise and appeal that's three encumbrances Sure, so there there is an original action There's an appeal of the original action and then there's a separate action in a different district, right in all three of those cases in all three of those cases an initial partial filing fee would be assessed and if funds existed collected and then Under either interpretation, right and then On a monthly basis going forward. There would be a separate 20% assessment against the previous month's income for each of those cases but you know not all three of them would be collected if to collect any one of them would would take the amount in the account below $10 and If this is actually not that difficult for the prison to implement There's a computer system for the Bureau of Prisons that knows to stop deducting as soon as you get below $10 The world we live in with the per prisoner approach though is each individual court when a case comes in will issue an order to The Bureau of Prisons or to the state system saying this act this action has come in, you know Please assess this $8 initial partial filing fee and then please give us 20% of the inmates income from the previous month to the extent The amount in the account exceeds $10. Well the Bureau of Prisons Under that say the second or fourth circuits approach which adopted per prisoner The prison has these two orders from two courts saying give me 20% in excess of $10 and the prison essentially is put to the position of having to ignore a court order that provides no provision on its face for what to do in this situation and Okay, is that The Whitfield case I think in the Tories case which have held in favor of your Adversary here and then you have the Atchison case which is in your favor. Where do they differ? Where where is the line of demarcation that can persuade us that we ought to go one way or the other? Well what the Whitfield and the Torres courts found most persuasive was a concern that the going with the government's interpretation here might raise serious constitutional concerns about the right of access of prisoners to the courts and you know the flaw in that reasoning is that the statute itself provides on its face for cases to go forward if the funds are Not there for for a prisoner to make payments and you know, I think plaintiff quite rightly recognizes in his reply brief That they're actually there's no serious concern about that there And in fact the plaintiff in his reply brief Characterizes the government's attempt to explain why Torres and Whitfield are incorrect as an attempt by the government to knock down straw men Well, we were actually just trying to respond to the only rationale that any court has ever applied in ruling for for plaintiffs position so we don't see any any constitutional concerns here and and I take plaintiffs point that there may be state prisons or That do a less effective job of distributing the necessary necessities of life, but respectfully That's not a filing fee problem. And if there are problems with distribution of the necessities of life, then, you know Those cases should be litigated In their own right and and don't need to be addressed, you know Indirectly through the back door in terms of interpreting what the statute means So Where that leaves us I think is just you know with no thumb on the scale look at the text of the statute Try to figure out what the most reasonable reading of the text is In the light of what Congress is trying to to to achieve with this purpose And I think the only reasonable interpretation is that b2 Like b1 to which b2 refers back to should be applied on on a per case basis You haven't made an argument that some sort of deference is owed to the government's position, right? The Bureau of Prisons position. No, we have not your honor Is there a rule and that may not come into play here because this is a civil matter not a criminal matter, but to the extent that Either interpretation could be supported by the text of the statute I think that's where we are despite the split in the circuits. You can read the statute b2 either way To what extent should we be cognizant of something like rule of limited and decide the case to be influenced by the fact that if we decide it in the sequential way that we have less of an impact on access to the courts and less of an impact on Inmates ability to bring lawsuits, I guess you could flip that over and say what if it's him the Congress is concerned about Putting a damper on lawsuits that that congressional concern would inform our congressional But is there is the room here for that kind of analysis I don't think so your honor the rule of lenity is of course well established in the criminal law But there's no doctrine of statutory interpretation on the civil side that says we should have a particular presumption about Congress's policy intent I think we should start from the language of the statute and You know We see here that Congress intended a filing fee to be paid in each and every case and and I fully Recognize that Congress could have specified that the monthly payment under b2 would be applied on a per prisoner basis But I think Congress would have said so in the statute itself and there's plenty of protections there already In the text of b2 and b1 and b4 that that allow a case to go forward even when the prisoner doesn't have resources to Do so also set on a per case basis b2 could easily say that you will make this deduction for each matter, which is then pending that's true Congress could have been clear for that, but I don't think that Congress didn't expressly answer the question before us That's why we're here But I don't think we should give up on the text so quickly and that was I think the Torres courts mistaken the Fourth Circuit That they said we think the statute is totally silent So let's try to figure out as a policy matter what would work well and also think about you know potential constitutional burdens But that's you know, we have to try harder. Could you explain how the statute is clear for your side then? Well, I would commend to you the the Fifth Circuit's Opinion in Atchison and the Tenth Circuit's unpublished opinion in Christensen which both concluded that the statute unambiguously Supports the government's position and it's it's the reasoning that b1 and b2 work together b1 says You know a prisoner who brings a civil action or files an appeal shall pay a filing fee B2 says after payment of the initial partial filing fee the prisoner shall make monthly payments of 20% The agency having custody of the prisoner shall remit those payments to the clerk of the court, which was the court that assessed the fee until the fees are paid and There's there's there's nothing in the tax that the statute that you know author purports to authorize a court to defer the payment Indefinitely of the monthly filing fees for a second or successive lawsuit pending collection of a previous one Just one more question. I we you're probably familiar with our Abdul Ackar case ab car case we held that three strikes ruled did not violate prisoners constitutional rights Does that help inform our analysis here? I? Think it does your honor and it comes in on this right of access to the courts point with which I take plaintiff to be more or less in agreement with the government's position that you know If it's not if it doesn't present a burden on a prisoner's right of access to the courts For a prisoner after accruing three strikes to not even get his case heard by a court unless he prepays the entire fee then there's Necessarily no concern whereas here a prisoner's case will go forward and the only question is to the extent he has discretionary funds available Will he be expected to pay incrementally more per month to the extent? He incrementally files more lawsuits But the purpose of the three strikes law pretty clearly is to penalize people who take advantage of the process and file It is to deter frivolous lawsuits and deter and I'm saying penalize penalize people who file for those lawsuits and The PLRA you can argue is to penalize people also But it seems like it's more in the nature as you just said to deter not to punish Why wouldn't that be a distinction so that rationale for the three strikes? Cases does not necessarily help us here Well, you know I The PLRA is not a criminal statute and I don't I Certainly would not suggest that it's intended to punish in any way prisoners It's in various ways to try to deter frivolous litigation And one way you deter it is say if you have three frivolous or malicious lawsuits You have to prepay after that and another way is to say we're gonna have a pay-as-you-go Constraint such that the more the more demands you place upon the court system the more you're expected to to spend some of your discretionary funds and Yeah, I take plaintiffs point that you know Perhaps as a policy matter Congress could have just had the three strikes rule and not also required an initial partial filing fee and a Monthly payment of fees, but you know, we have to apply each each piece of the statute that's before us here and You know for better or worse any concerns With whether the policy incentives have been calibrated in the right way need to be directed to Congress What he said a few minutes ago was It struck a response of court until back to the language you can I'm not sure it's as helpful as I thought when you when you focused on Pay from the prisoner's account to the clerk of the court Suggesting that they're talking about a singular Process but that language that the clerk of the court would come into play no matter which interpretation you would be correct I Think the more relevant point is everyone agrees that you want applies on a per case basis and courts around the country every day are issuing orders to prisons in an individual case without addressing any possible other litigation that prisoner may have saying give me 20% of the inmates income from the previous month the extent funds are available in excess of $10 to do so and There's nothing clearly in the text of b2 to suggest otherwise and we think that there's a you know It's at a minimum a reasonable construction of everything in b2 that favors our interpretation and as the fifth and ten circuits have held Unambiguously supports and compels our interpretation So I take your honor's point that you know, it's it could be a lot clearer and the government recognizes that Tell me something. Mr. Sandberg because Different circuits have different rules that have been derived from the statute here. How does it work out? when there are Actions brought in two diverse circuits with two different rules now the government must have knowledge of that kind of conflict and How does the clerk and the prison authorities? Resolve it as to and particularly in these days of judicial financial restraint If we're talking sometimes about ten dollars a month or three dollars and 48 cents the case may be How is it resolved? With your honor's indulgence. I'll answer the question So we are well aware of the law that binds us in the fourth and the second circuits and we faithfully apply it what we have to do though is In our computer system if there's a case that's coming from the second or the fourth circuit We won't enter subsequent court orders into our collection system to ensure that only You know one filing fee is deducted at a time and then we have to try to remember it's a manual process We have to try to remember when the first filing fee is done being paid to go in and put the second Court order back in the system And so wouldn't it be a devil of a lot easier if the sequential methods that's advocated by Mr. Sullen Was adopted nationwide and wouldn't it be easier at least for those people that have to implement it and the government I think One of either way the Bureau of Prisons would find it easier to implement than the system We have now where the circuits are split on this and you know It may well be that the Supreme Court will take up this issue in order to solve the administrative burden on the Bureau of Prisons That it currently has and having to negotiate two different systems but what we think is the right answer is to go with the per case approach which allows an individual district court clerk in the Eastern District of Pennsylvania or in Arkansas or wherever to issue an order saying you know to the extent funds are available give me 20% of the previous month's income and then the Bureau of Prisons isn't put to a Position of having to figure out which court order to obey and which one to leave to the side well before we Impose the burden on the Supreme Court wouldn't it be a lot easier and a lot more logical to impose it on Congress perhaps That's where it started and that's where it ought to end I'm not aware of any legislative efforts to try to clarify this just yet, but I Agree with you that there's you know some concerns here about administering two different systems at the same time No comment your honor If there are no further questions For the reasons we've discussed the United States respectfully request that the court deny plaintiff's motion for sequential payment Thank you You say Forrester, it's Forrester. Thank you Judge McKee you said that under either Mr. Silex reading or the government's reading there's a disincentive to Frivolous filing frivolous lawsuits both ways and the question is how big a disincentive? I think that question really gets to the heart of what's at issue in this case the size of the deterrent and The answer to that is the one the balance that Congress struck Congress on the face of its statute clearly intended prisoners to be able to keep some portion of their earnings in recognition of The things that they need to be able to provide for themselves in prison And so I think that's really important to zero in on And I would say that the deterrent effect is not less for the third fourth and fifth cases as my colleague said Because the prisoners not released from his obligation This is not a question of whether my client will be required to pay both of the filing fees he owes it's a question of when and You know this idea that there's some problem with deferring quote-unquote indefinitely The fees that are as they're paid back I think the problem with that is one that goes straight back to Congress Congress put in place a Deferred payment plan for prisoners. That's what the statute is. That's what b2 is all about There's no problem with deferral unless the problem is with the statute itself Assume there's no national regulation that you may not know Well, what constitutes fundamental hygiene is that is the prisoner if there's no money in a prisoner's account Can he or she get so deodorant Toothpaste because arguably those things are not Fundamental to hygiene I had a roommate my first year of college who was exhibit a in that No, not not using the things to which he was entitled under the Eighth Amendment, um But I don't know that there's any regulation about that That the Bureau of Prisons might have one what I saw in the cases is that The kind of hygiene items that we're talking about is being the ones to which a prisoner has an Eighth Amendment, right? Would be the very basic the soap the shampoo the deodorant. I think maybe razors and shaving cream like that kind of body Right, right Anything else judge Garth No, I have no other questions in this first two things both attorneys excellent job. You're very very fine job and What at least to my relatively simple mind is a complicated and confusing case But I really commend you both in your arguments and mr. First of course, you're pro bono, I believe Thank you very much. If you can convey the court's thanks back to whoever it is at the firm who makes these assignments and volunteers It forms resources. It's great. We appreciate Thank you --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/argument%3A864. Public record. Not legal advice.