Petition for Writ of Certiorari — David Samarripa, et al., Petitioners v. Gregory Kizziah, Warden, et al.
Supreme Court briefAug 1, 2019
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No. 19-____
IN THE
Supreme Court of the United States
_________
DAVID SAMARRIPA, ET AL.,
Petitioners,
v.
GREGORY KIZZIAH, WARDEN, ET AL.,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
NEAL KUMAR KATYAL
KATHERINE B. WELLINGTON
Counsel of Record
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
katherine.wellington@hoganlovells.com
Counsel for Petitioners
QUESTION PRESENTED
Whether federal courts have the authority to impose partial filing fees on habeas petitioners.
(i)
ii
PARTIES TO THE PROCEEDING
Timmie D. Cole, Sr., Jose Adrian Hernandez,
Stephon Mason, Arnulfo Torres Perez, and David
Samarripa, petitioners on review, were the petitioners below.
Gregory Kizziah, Louis Milusnic, and Steven Lake,
wardens, are respondents on review.
J. Ray Ormond, warden, was the respondent below.
iii
RELATED PROCEEDINGS
To counsel’s knowledge, all proceedings directly
related to this petition include:
Petitioner Timmie D. Cole, Sr.:
Cole v. Ormond, No. 17-6333 (6th Cir. Mar. 4,
2019); No. 17-6534 (6th Cir. dismissed Feb. 1,
2018); No. 6:17-cv-00150-GFVT (E.D. Ky. Dec.
13, 2017); No. 6:16-cv-053-DCR (E.D. Ky. May
18, 2016) (reported at 2016 WL 2903230); No.
6:17-cv-00346-JMH-CJS (E.D. Ky.)
United States v. Cole, No. 3:02-cr-00034-RP-3
(S.D. Iowa closed Jan. 3, 2006); No. 03-3140 (8th
Cir. Aug. 25, 2004) (reported at 380 F.3d 422);
No. 07-2175 (8th Cir. May 23, 2008) (reported at
278 F. App’x 706); No. 08-3261 (8th Cir. Oct. 7,
2008); No. 08-3619 (8th Cir. Nov. 13, 2009) (reported at 371 F. App’x 693)
Cole v. United States, No. 4:05-cv-635-REL (S.D.
Iowa Sept. 10, 2007); No. 07-3173 (8th Cir. Sept.
18, 2008); No. 4:09-cv-00172-REL (S.D. Iowa
Jan. 20, 2011); No. 4:14-cv-00317-REL (S.D. Iowa Aug. 13, 2014); No. 16-3416 (8th Cir. Feb.
23, 2017); No. 17-1705 (8th Cir. Aug. 14, 2017)
Petitioner Jose Adrian Hernandez:
Hernandez v. Ormond, No. 17-6213 (6th Cir.
Mar. 4, 2019); No. 17-6434 (6th Cir. dismissed
Jan. 17, 2018); No. 6:17-cv-00081-DLB (E.D. Ky.
Nov. 16, 2017)
United States v. Hernandez, No. 5:05-cr-2481-2
(S.D. Tex. Apr. 6, 2006); No. 06-40683 (5th Cir.
Aug. 21, 2007)
iv
Hernandez v. United States, No. 5:16-cv-00179
(S.D. Tex. Jan. 20, 2017)
Petitioner Stephon Mason:
Mason v. Ormond, No. 17-6166 (6th Cir. Mar. 4,
2019); No. 17-6279 (6th Cir. dismissed Jan. 17,
2018); No. 18-5126 (6th Cir. dismissed July 3,
2018); No. 6:17-cv-00082-KKC (E.D. Ky. Oct. 19,
2017)
United States v. Mason, No. 8:03-cr-321-DKC-4
(D. Md. Sept. 29, 2005); No. 05-5000 (4th Cir.
July 13, 2007) (reported at 2007 WL 2046735);
No. 10-6292 (4th Cir. May 28, 2010) (reported at
380 F. App’x 336)
Mason v. United States, No. 8:08-cv-02260 (D.
Md. Apr. 30, 2009) (reported at 2009 WL
1310886)
In re Mason, No. 12-379 (4th Cir. Dec. 13, 2012);
No. 14-135 (4th Cir. dismissed Feb. 25, 2014);
No. 17-249 (4th Cir. dismissed June 6, 2017)
Mason v. O’Brien, No. 2:13-cv-00050-JPB-JSK
(N.D. W. Va. Dec. 16, 2013) (reported at 2013
WL 6583988); No. 14-06053 (4th Cir. Apr. 18,
2014) (reported at 566 F. App’x 269)
Petitioner Arnulfo Torres Perez:
Perez v. Ormond, No. 6:17-cv-00072-KKC (E.D.
Ky. Nov. 3, 2017); No. 17-6299 (6th Cir. Mar. 4,
2019); No. 17-6362 (6th Cir. dismissed Mar. 21,
2018)
United States v. Perez, No. 1:11-CR-00360-SS-10
(W.D. Tex. Dec. 19, 2011); No. 16-51452 (5th
Cir. dismissed Feb. 23, 2017); No. 16-51453 (5th
Cir. dismissed July 13, 2017)
v
Petitioner David Samarripa:
Samarripa v. Ormond, No. 6:17-cv-00086-DCR
(E.D. Ky. Oct. 11, 2017); Nos. 17-6048, 17-6260
(6th Cir. Mar. 4, 2019)
United States v. Samarripa, No. 1:11-cr-00360SS-14 (W.D. Tex. Dec. 19, 2011); No. 13-50048
(5th Cir. dismissed Apr. 4, 2013); No. 14-50283
(5th Cir. dismissed May 16, 2014); No. 14-50920
(5th Cir. dismissed Oct. 1, 2014); No. 17-50033
(5th Cir. Sept. 13, 2017) (reported at 697 F.
App’x 374)
Samarripa v. United States, No. 1:12-cv-01028SS (W.D. Tex. Mar. 13, 2013) (reported at 2013
WL 12113202)
In re Samarripa, No. 14-50267 (5th Cir. June
18, 2014); No. 14-50841 (5th Cir. Sept. 17,
2014); No. 14-51186 (5th Cir. dismissed Dec. 2,
2014); No. 16-51360 (5th Cir. dismissed Feb. 16,
2017); No. 17-50192 (5th Cir. dismissed Apr. 19,
2017)
vi
TABLE OF CONTENTS
Page
QUESTION PRESENTED........................................... i
PARTIES TO THE PROCEEDING ............................ii
RELATED PROCEEDINGS ..................................... iii
TABLE OF AUTHORITIES .....................................viii
OPINIONS BELOW .................................................... 1
JURISDICTION .......................................................... 1
STATUTORY AND PROCEDURAL
PROVISIONS INVOLVED .................................... 2
INTRODUCTION ........................................................ 4
STATEMENT .............................................................. 7
A. Statutory Background ...................................... 7
B. Procedural History ......................................... 10
REASONS FOR GRANTING THE PETITION ....... 12
I. THERE IS AN ACKNOWLEDGED
CIRCUIT SPLIT OVER WHETHER
COURTS HAVE AUTHORITY TO IMPOSE
PARTIAL FILING FEES ON HABEAS
PETITIONERS .................................................... 12
II. THE QUESTION PRESENTED IS
IMPORTANT ....................................................... 18
III.THE DECISION BELOW IS WRONG ............... 21
IV. THIS CASE IS A CLEAN VEHICLE TO
ADDRESS THE QUESTION PRESENTED ...... 25
CONCLUSION .......................................................... 26
APPENDIX A—Sixth Circuit’s Opinion
(Mar. 4, 2019) .................................................... 1a
APPENDIX B—District Court’s Order,
Samarripa v. Ormond (Oct. 11, 2017) ............ 18a
vii
TABLE OF CONTENTS—Continued
Page
APPENDIX C—District Court’s Order,
Perez v. Ormond (Nov. 3, 2017) ...................... 20a
APPENDIX D—District Court’s Order,
Mason v. Ormond (Oct. 19, 2017) ................... 22a
APPENDIX E—District Court’s Order,
Hernandez v. Ormond (Nov. 16, 2017) ........... 24a
APPENDIX F—District Court’s Order,
Cole v. Ormond (Dec. 13, 2017) ...................... 26a
viii
TABLE OF AUTHORITIES
Page(s)
CASES:
Adkins v. E.I. DuPont de Nemours & Co.,
335 U.S. 331 (1948) ....................................... 7, 24
Bonadonna v. United States,
446 F. App’x 407 (3d Cir. 2011) .................... 5, 14
Bradford v. Southern Ry. Co.,
195 U.S. 243 (1904) ........................................... 24
Bullock v. Suomela,
710 F.2d 102 (3d Cir. 1983)............................... 15
Carlos v. Williams,
No. 14-cv-1263, 2015 WL 5813004
(C.D. Ill. Oct. 5, 2015) ....................................... 17
Castillo v. United States,
No. 09-CV-4222 (ENV), 2011 WL 4592829,
(E.D.N.Y. Sept. 30, 2011) .................................. 18
Collier v. Tatum,
722 F.2d 653 (11th Cir. 1983) ........................... 15
Collins v. Sec’y, Dept. of Corr.,
No. 17-13207-F, 2019 WL 3209880
(11th Cir. Mar. 12, 2019) .............................. 6, 14
Ellis v. Werlich,
No. 16-cv-737-DRH, 2016 WL 10703623
(S.D. Ill. Nov. 10, 2016) ..................................... 17
Evans v. Croom,
650 F.2d 521 (4th Cir. 1981) ............................. 15
Garza v. Thaler,
585 F.3d 888 (5th Cir. 2009) ..................... passim
ix
TABLE OF AUTHORITIES—Continued
Page(s)
Greer v. Smith,
No. 5:16-cv-338-JMH-CJS, 2019 WL
2062949 (E.D. Ky. May 19, 2019) ..................... 17
Harris v. Nelson,
394 U.S. 286 (1969) ........................................... 20
Homelsey v. Dittman,
No. 16-cv-47-bbc, 2017 WL 3927543
(W.D. Wis. May 3, 2017) ................................... 17
In re Ephraim,
473 F. App’x 320 (4th Cir. 2012) ................... 5, 14
In re Epps,
888 F.2d 964 (2d Cir. 1989)............................... 15
In re Mimms,
256 F. App’x 46 (9th Cir. 2007) ..................... 6, 14
In re Williamson,
786 F.2d 1336 (8th Cir. 1986) ........................... 15
Jones v. Kelley,
No. 17-2317, 2017 WL 6327548
(8th Cir. Oct. 25, 2017).............................. 5, 6, 14
Jones v. Zimmerman,
752 F.2d 76 (3d Cir. 1985)................................. 16
Kincade v. Sparkman,
117 F.3d 949 (6th Cir. 1997) ............................... 8
Longbehn v. United States,
169 F.3d 1082 (7th Cir. 1999) ................. 6, 12, 16
Lumbert v. Ill. Dep’t of Corr.,
827 F.2d 257 (7th Cir. 1987) ............................. 15
Michigan v. Bay Mills Indian Cmty.,
572 U.S. 782 (2014) ........................................... 19
x
TABLE OF AUTHORITIES—Continued
Page(s)
Olivares v. Marshall,
59 F.3d 109 (9th Cir. 1995) ............................... 15
Ramsey v. Redmann,
No. 3:11-cv-65, 2011 WL 6217073
(D.N.D. Dec. 14, 2011)....................................... 18
Rodriguez v. Nicholson,
No. 10-0077-DRH, 2013 WL 2383630
(S.D. Ill. May 30, 2013) ..................................... 17
Samarripa v. Ormond,
917 F.3d 515 (2019) ...................................... 1, 17
Smith v. Bennett,
365 U.S. 708 (1961) ........................................... 20
Souder v. McGuire,
516 F.2d 820 (3d Cir. 1975)............................... 16
TRW Inc. v. Andrews,
534 U.S. 19 (2001) ............................................. 22
United States v. Cotton,
No. 6:00-cr-60029, 2011 WL 13213858
(W.D. La. Aug. 25, 2011) ................................... 17
Univ. of Tex. Sw. Med. Ctr. v. Nassar,
570 U.S. 338 (2013) ..................................... 22, 23
Walker v. O’Brien,
216 F.3d 626 (7th Cir. 2000) ....................... 16, 17
Wilborn v. Pfister,
No. 10-0423-DRH, 2014 WL 1220535
(S.D. Ill. Mar. 25, 2014)..................................... 17
Witkin v. Yates,
No. CIV S-10-0091 GEB DAD P, 2013 WL
3148454 (E.D. Cal. June 19, 2013) ................... 17
xi
TABLE OF AUTHORITIES—Continued
Page(s)
York v. Terrell,
344 F. App’x 460 (10th Cir. 2009) ................. 6, 14
STATUTES:
Act of July 20, 1892, ch. 209, §§ 1-5,
27 Stat. 252 .................................................... 8, 23
Act of June 25, 1948, ch. 646, 62 Stat. 954 .............. 8
Act of Sept. 21, 1959, Pub. L. No. 86-320,
73 Stat. 590 .......................................................... 8
28 U.S.C. § 1254(1) ................................................... 2
28 U.S.C. § 1913 .............................................. 2, 7, 18
28 U.S.C. § 1914(a) ................................................... 7
28 U.S.C. § 1915 .............................................. passim
28 U.S.C. § 1917 ........................................................ 7
28 U.S.C. § 2241 ..................................................... 10
RULE:
Fed. R. App. P. 24 ........................................... passim
OTHER AUTHORITY:
Court of Appeals Miscellaneous Fee Schedule
(effective Sept. 1, 2018), available at
https://bit.ly/2OdLxTB ........................................ 7
IN THE
Supreme Court of the United States
_________
No. 19_________
DAVID SAMARRIPA, ET AL.,
Petitioners,
v.
GREGORY KIZZIAH, WARDEN, ET AL.,
Respondents.
_________
On Petition for a Writ of Certiorari to the
United States Court of Appeals
for the Sixth Circuit
_________
PETITION FOR A WRIT OF CERTIORARI
_________
Timmie D. Cole, Sr., Jose Adrian Hernandez,
Stephon Mason, Arnulfo Torres Perez, and David
Samarripa respectfully petition for a writ of certiorari to review the judgment of the Sixth Circuit below.
OPINIONS BELOW
The Sixth Circuit’s opinion is reported at 917 F.3d
515 (2019). Pet. App. 1a-17a. The district court
opinions are not reported. Id. at 18a-19a, 20a-21a,
22a-23a, 24a-25a, 26a-27a.
JURISDICTION
The Sixth Circuit entered judgment on March 4,
2019. Justice Sotomayor granted an extension of the
(1)
2
period for filing this petition to August 1, 2019. This
Court’s jurisdiction is invoked under 28 U.S.C.
§ 1254(1).
STATUTORY AND PROCEDURAL
PROVISIONS INVOLVED
Section 1913 of Title 28 of the U.S. Code provides:
The fees and costs to be charged and collected in each court of appeals shall be
prescribed from time to time by the Judicial Conference of the United States.
Such fees and costs shall be reasonable
and uniform in all the circuits.
Section 1915(a) of Title 28 of the U.S. Code
provides:
(1) Subject to subsection (b), any 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 who submits an affidavit that includes a statement of all assets such prisoner possesses that the person is unable
to pay such fees or give security therefor.
Such affidavit shall state the nature of
the action, defense or appeal and affiant’s
belief that the person is entitled to redress.
(2) A prisoner seeking to bring a civil action or appeal a judgment in a civil action
or proceeding without prepayment of fees
or security therefor, in addition to filing
3
the affidavit filed under paragraph (1),
shall submit a certified copy of the trust
fund account statement (or institutional
equivalent) for the prisoner for the 6month period immediately preceding the
filing of the complaint or notice of appeal,
obtained from the appropriate official of
each prison at which the prisoner is or
was confined.
(3) An appeal may not be taken in forma
pauperis if the trial court certifies in writing that it is not taken in good faith.
Rule 24(a) of the Federal Rules of Appellate
Procedure states:
(a) Leave to Proceed in Forma Pauperis.
(1) Motion in the District Court. Except
as stated in Rule 24(a)(3), a party to a
district-court action who desires to appeal in forma pauperis must file a motion in the district court. The party
must attach an affidavit that:
(A) shows in the detail prescribed by
Form 4 of the Appendix of Forms the
party’s inability to pay or to give security for fees and costs;
(B) claims an entitlement to redress;
and
(C) states the issues that the party intends to present on appeal.
(2) Action on the Motion. If the district
court grants the motion, the party may
proceed on appeal without prepaying or
giving security for fees and costs, unless
4
a statute provides otherwise. If the district court denies the motion, it must
state its reasons in writing.
***
(4) Notice of District Court’s Denial.
The district clerk must immediately notify the parties and the court of appeals
when the district court does any of the
following:
(A) denies a motion to proceed on appeal in forma pauperis;
(B) certifies that the appeal is not taken in good faith; or
(C) finds that the party is not otherwise entitled to proceed in forma pauperis.
(5) Motion in the Court of Appeals. A
party may file a motion to proceed on
appeal in forma pauperis in the court of
appeals within 30 days after service of
the notice prescribed in Rule 24(a)(4).
The motion must include a copy of the
affidavit filed in the district court and
the district court’s statement of reasons
for its action. If no affidavit was filed in
the district court, the party must include the affidavit prescribed by Rule
24(a)(1).
INTRODUCTION
Petitioners are five federal prisoners seeking habeas corpus relief. All five qualify for in forma pauperis status, as the district courts determined below.
All five petitioners, however, were required to pay a
5
significant sum—between $50 and $400—to appeal
the denial of habeas corpus relief by the district
court. The issue in this case, which has divided the
circuits, is whether federal courts have the authority
to impose partial filing fees on habeas petitioners.
Under 28 U.S.C. § 1915(a), federal courts may
grant in forma pauperis status, authorizing a suit or
appeal “without prepayment of fees.” 28 U.S.C.
§ 1915(a). Rule 24 of the Federal Rules of Appellate
Procedure provides that if a court grants in forma
pauperis status, “the party may proceed on appeal
without prepaying or giving security for fees and
costs, unless a statute provides otherwise.” Fed. R.
App. P. 24(a)(2). The courts of appeals have adopted
different interpretations of these two provisions,
leading to significantly disparate outcomes for habeas petitioners seeking in forma pauperis status.
In Garza v. Thaler, 585 F.3d 888 (5th Cir. 2009)
(per curiam), the Fifth Circuit held that courts lack
authority to impose partial filing fees on habeas
petitioners. See id. at 889-890. As the Fifth Circuit
explained, the text of Rule 24 dictates that “if leave
to proceed [in forma pauperis] is granted, the party
may appeal without paying appellate fees and costs,”
and courts do “not have either the discretion or the
inherent power” to impose partial filing fees on
habeas petitioners. Id. at 890. In the Fifth Circuit’s
view, Section 1915(a) similarly does not permit
courts to impose these fees. See id. As a matter of
practice, numerous other circuits permit habeas
petitioners to appeal without paying a partial filing
fee. See, e.g., Bonadonna v. United States, 446 F.
App’x 407, 409 (3d Cir. 2011) (per curiam); In re
Ephraim, 473 F. App’x 320, 320-321 (4th Cir. 2012)
6
(per curiam); Jones v. Kelley, No. 17-2317, 2017 WL
6327548, at *1 (8th Cir. Oct. 25, 2017); In re Mimms,
256 F. App’x 46, 46 (9th Cir. 2007); York v. Terrell,
344 F. App’x 460, 462 (10th Cir. 2009); Collins v.
Sec’y, Dept. of Corr., No. 17-13207-F, 2019 WL
3209880, at *1 (11th Cir. Mar. 12, 2019).1
In the proceedings below, the Government filed a
brief in support of Petitioners’ position, urging the
Sixth Circuit to conclude that federal courts lack
authority to impose partial filing fees on habeas
litigants. See Pet. App. at 4a, 8a-11a. The Sixth
Circuit refused. In stark disagreement with the
Fifth Circuit—and with the practice of most other
courts of appeals—the Sixth Circuit held that neither
the text of Rule 24 nor Section 1915 answers whether courts may impose partial filing fees on habeas
petitioners. Pet. App. 4a-5a. The Sixth Circuit
instead looked to “[h]istory” and “contextual clue[s]”
to find a congressional intent to allow courts to
collect these fees. Id. at 5a-7a. The Seventh Circuit
has similarly held that courts may collect partial
filing fees in habeas cases, concluding that these fees
are “not an undue burden” on habeas petitioners.
Longbehn v. United States, 169 F.3d 1082, 1083-84
(7th Cir. 1999). District courts in the Sixth and
Seventh Circuits—but not elsewhere—continue to
require partial filing fees in habeas cases. See infra
pp. 17-18 (collecting cases).
1
These circuits have not explicitly addressed the question
presented, but they do not appear to impose partial filing fees
in habeas appeals. In those courts, habeas petitioners who
qualify for in forma pauperis status may appeal without paying
a fee.
7
Congress has instructed that the “fees and costs to
be charged and collected in each court of appeals
* * * * shall be reasonable and uniform in all the
circuits.” 28 U.S.C. § 1913. As it stands today, two
identical prisoners seeking habeas relief may be
subject to entirely different filing fee regimes merely
because they are litigating in different circuits: One
prisoner may pay hundreds of dollars to vindicate his
rights on appeal, while another may pay nothing.
One may be subject to a court-fashioned system of
partial fees, while another may proceed under the
system Congress designed, which does not require
such fees. This Court’s intervention is urgently
warranted to restore the uniform fee system that
Congress intended.
STATEMENT
A. Statutory Background
To file suit in federal court, litigants must typically
pay a filing fee. For habeas petitions, the fee is $5;
for civil actions, it is $350; and for appeals, it is $505.
See 28 U.S.C. §§ 1913, 1914(a), 1917; see also Court
of Appeals Miscellaneous Fee Schedule (effective
Sept. 1, 2018), available at https://bit.ly/2OdLxTB.
To ensure that no person “shall be denied an opportunity to commence, prosecute, or defend an action,
civil or criminal, in any court of the United States
solely because [of] his poverty,” however, Congress
permits litigants to file suit in forma pauperis.
Adkins v. E.I. DuPont de Nemours & Co., 335 U.S.
331, 342 (1948) (internal quotation marks omitted).
Congress enacted the first in forma pauperis statute in 1892, which provided that a citizen may
commence any suit or action “without being required
to prepay fees or costs” by filing an affidavit stating
8
that he is impoverished and “unable to pay the costs
of said suit or action.” Act of July 20, 1892, ch. 209,
§§ 1-5, 27 Stat. 252. In 1948, Congress enacted the
modern version of the in forma pauperis statute,
codified at 28 U.S.C. § 1915, which provided that any
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 and costs or security therefor, by
a citizen who makes [an] affidavit that he is unable
to pay such costs.” Act of June 25, 1948, ch. 646, 62
Stat. 954. Congress made minor revisions to Section
1915 in the decades that followed, leaving its text
mostly intact. See, e.g., Act of Sept. 21, 1959, Pub. L.
No. 86-320, 73 Stat. 590 (substituting “person” for
“citizen”).
Congress enacted the current version of Section
1915 in 1996. At that time, Congress was concerned
with the “alarming explosion of civil rights lawsuits
filed by both state and federal prisoners” that “appeared in great measure to raise frivolous due process and cruel and unusual punishment claims.”
Kincade v. Sparkman, 117 F.3d 949, 951 (6th Cir.
1997). To address that concern, Congress adopted
the Prison Litigation Reform Act (PLRA), which
placed a number of restrictions on civil suits filed by
prisoners.
The PLRA made two relevant amendments to the
in forma pauperis statute. First, it amended Section
1915(a) to provide that courts may grant in forma
pauperis status “[s]ubject to” the requirements of
Section 1915(b). The revised Section 1915(a) states:
Subject to subsection (b), any court of the
United States may authorize the com-
9
mencement, 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 who
submits an affidavit that includes a statement of all assets such prisoner possesses
that the person is unable to pay such fees
or give security therefor. Such affidavit
shall state the nature of the action, defense
or appeal and affiant’s belief that the person is entitled to redress.
28 U.S.C. § 1915(a)(1) (emphasis added).
Second, the PLRA added Section 1915(b), which
requires any person who “brings a civil action or files
an appeal in forma pauperis” to comply with an
elaborate regime for collecting partial filing fees. Id.
§ 1915(b). Under that regime—which applies only to
“civil” suits—courts are required to asses an initial
partial filing fee of 20% of the average monthly
deposits in a prisoner’s trust fund account, or 20% of
the average monthly balance of that account, whichever is greater. Id. Once the initial partial filing fee
has been paid, prisoners must then make monthly
payments until they satisfy the full fee. Id. The
courts of appeals have unanimously held that the
PLRA’s partial filing fee regime does not apply to
habeas actions. See Pet. App. 13a (collecting cases).2
2
Court-appointed amicus argued below that the PLRA does
apply to appeals by habeas petitioners. See Pet. App. 12a. The
Sixth Circuit held that the issue was not “squarely present[ed]”
on appeal, and the court declined to pass on it. Id. at 17a. As
the Sixth Circuit noted, the courts of appeals have universally
10
Rule 24 addresses the proper steps for seeking in
forma pauperis status on appeal. See Fed. R. App. P.
24(a). It states that a litigant must first file a motion
for in forma pauperis status in the district court,
attaching an affidavit describing the litigant’s inability to pay. See id. at 24(a)(1). If the district court
grants the motion, the litigant “may proceed on
appeal without prepaying or giving security for fees
and costs, unless a statute provides otherwise.” Id.
at 24(a)(2). If the district court denies the motion,
the litigant “may file a motion to proceed on appeal
in forma pauperis in the court of appeals.” Id. at
24(a)(5).
B. Procedural History
Petitioners are five federal prisoners serving sentences for drug-related offenses. Each sought federal
habeas relief in the Eastern District of Kentucky
under 28 U.S.C. § 2241, and each paid the $5 filing
fee for habeas petitions. The district courts denied
habeas relief, and Petitioners timely appealed.
Petitioners sought in forma pauperis status on
appeal, stating that they were unable to pay the
$505 appellate filing fee. The district courts determined that each petitioner was unable to pay the full
fee and was thus entitled to in forma pauperis status. See Pet. App. 18a-19a, 20a-21a, 22a-23a, 24a25a, 26a-27a.
Nevertheless, the district courts
imposed a partial filing fee on each petitioner: $50
for Cole and Samarripa; $350 for Hernandez; and
$400 for Mason and Perez. See Pet. App. 3a. The fee
held that the PLRA does not apply to habeas cases, and the
Government agrees with that position. See id. at 12a-13a.
11
was based on an assessment of each Petitioner’s
ability to pay a portion of the $505 fee.
Petitioners challenged the partial filing fees in the
Sixth Circuit, which consolidated Petitioners’ cases
and appointed Counsel of Record to brief and argue
Petitioners’ position. The Government filed a brief in
support of Petitioners, and the Sixth Circuit appointed an amicus curiae to defend the district courts’
judgments. The Sixth Circuit ultimately adopted
amicus’s position, affirming imposition of the partial
filing fees. The Sixth Circuit concluded that courts
have “ample discretion” to impose such fees on
habeas petitioners. Id. at 7a-8a. In reaching its
conclusion, the Sixth Circuit recognized a clear split
between the Fifth, Sixth, and Seventh Circuits. See
id. at 8a-9a (acknowledging that the Fifth Circuit
“took a different approach”).
Following the Sixth Circuit’s decision, Petitioners
Hernandez, Mason, Perez, and Samarripa paid the
partial filing fee. Their appeals are pending before
the Sixth Circuit.3 Petitioner Cole did not pay the
partial filing fee, and his appeal was dismissed by
the Sixth Circuit for want of prosecution.
This petition followed.
3
Perez’s case was dismissed by the Sixth Circuit for failure to
prosecute, but he is seeking reinstatement.
12
REASONS FOR GRANTING THE PETITION
I. THERE IS AN ACKNOWLEDGED CIRCUIT
SPLIT OVER WHETHER COURTS HAVE
AUTHORITY TO IMPOSE PARTIAL FILING
FEES ON HABEAS PETITIONERS.
The decision below deepened a clear split among
the courts of appeals. The Fifth Circuit, and the
Government below, conclude that federal courts lack
authority under Section 1915 and Rule 24 to impose
partial filing fees on habeas petitioners. See Garza,
585 F.3d at 890; Appellee Br. at 10-12, C.A. Dkt. 32.
As a matter of practice, the Third, Fourth, Eighth,
Ninth, Tenth, and Eleventh Circuits do not appear to
impose partial filing fees on habeas petitioners. See
infra p. 14 (collecting cases). In contrast, the Sixth
and Seventh Circuits hold that federal courts may
impose these fees, and district courts in those jurisdictions regularly collect them. See Pet. App. 4a-8a;
Longbehn, 169 F.3d at 1083-84. This straightforward division in authority with respect to both the
Federal Rules of Appellate Procedure and the in
forma pauperis statute has consequential implications for habeas petitioners nationwide, who are
subject to different fee requirements based solely on
geography. The Court should grant certiorari to
resolve this pressing issue.
1. The Fifth Circuit holds that courts may not collect partial filing fees from habeas petitioners. In
Garza, a state prisoner seeking habeas relief requested in forma pauperis status on appeal. See 585
F.3d at 889. The district court acknowledged that
the petitioner could not afford to pay the full fee, and
it granted in forma pauperis status. See id. The
court nevertheless adopted the PLRA’s filing fee
13
regime as a matter of discretion, requiring the litigant to pay “an initial partial filing fee of $10.11”
and the “balance of $444.89” in “periodic installments” in order to file an appeal. Id.
The Fifth Circuit reversed. It explained that the
“language of Rule 24 is explicit: if leave to proceed [in
forma pauperis] is granted, the party may appeal
without paying appellate fees and costs, unless a
statute provides otherwise.” Id. at 890 (emphasis
omitted). The Fifth Circuit held that “no statute”
authorizes “a court to grant leave to proceed” in
forma pauperis in a habeas appeal and yet “require
payment of the appellate filing fee” in accordance
with the PLRA. Id. The court emphasized that it
could “not find any authority” to support the district
court’s imposition of a filing fee. Id. The Fifth
Circuit concluded that the “district court did not
have either the discretion or the inherent power to
require” the petitioner “to pay an appellate filing fee
in accordance with the terms of the PLRA,” and it
directed the clerk of court to refund all fees paid by
the petitioner. Id.
In the proceedings below, the Government agreed
that courts lack the authority to impose partial filing
fees on habeas litigants. As the Government stated,
“[t]here is no statutory authority for a district court
to impose a partial filing fee on a prisoner who files
an appeal from the denial of a petition for a writ of
habeas corpus, and the judicial decisions claiming
the authority to impose partial filing fees fail to give
a persuasive justification.” Appellee Br. at 3, C.A.
Dkt. 32. Instead, the plain meaning of “1915(a)
permits a court to grant or deny in forma pauperis
status to a litigant; it permits no other options.” Id.
14
at 10-11. Rule 24 “likewise offers the district court
only the two options of granting or denying the
motion” to proceed in forma pauperis. Id. at 12.
As a matter of practice, courts of appeals outside
the Sixth and Seventh Circuits do not appear to
impose partial filing fees on habeas petitioners. The
Tenth Circuit has stated that filing fees are “not
required for habeas matters.” York, 344 F. App’x at
462 (10th Cir.). Other circuits similarly permit
habeas petitioners to proceed in forma pauperis
without requiring partial filing fees. See, e.g., Bonadonna, 446 F. App’x at 409 (3d Cir.); Ephraim, 473
F. App’x at 320-321 (4th Cir.); Jones, 2017 WL
6327548, at *1 (8th Cir.); Mimms, 256 F. App’x at 46
(9th Cir.); Collins, 2019 WL 3209880, at *1 (11th
Cir.). In these courts too, Petitioners would have
been permitted to file an appeal without paying a
partial filing fee.
2. In the decision below, the Sixth Circuit—over the
Government’s objection—rejected the Fifth Circuit’s
analysis. It held that Rule 24 “does not rule in or
rule out” the ability of courts to impose partial filing
fees on habeas petitioners. Pet. App. 5a. It similarly
held that the text of Section 1915(a) “does not answer
the question” whether courts may require habeas
petitioners to pay partial filing fees. Id. at 4a. The
Sixth Circuit nevertheless concluded that because
Section 1915(a) “implies that courts may require
litigants to post something as security” for filing fees,
courts must also have implied authority to require
partial filing fees. Id. at 4a-5a. To justify its ruling,
the Sixth Circuit explained that it “would be strange”
to “pair a non-discretionary item with an eminently
discretionary one,” and that the “same kind of discre-
15
tion that accompanies ‘security’ decisions applies to
‘prepayment of fees’ decisions.” Id. at 5a.
The Sixth Circuit looked to “[h]istory” to confirm its
interpretation. Id. Prior to Congress’s passage of
the PLRA, multiple circuits had interpreted Section
1915(a) to permit courts to impose partial filing fees
on prisoners who file civil suits.4 The purpose of
these partial fees was to contain the “flood of pro se
§ 1983 prisoner actions now in federal court.” Collier
v. Tatum, 722 F.2d 653, 655 (11th Cir. 1983). Drawing on this history, the Sixth Circuit held that because Congress “did not meaningfully change the
text of § 1915(a)(1)” when it adopted the PLRA, 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.” Pet. App. 6a.
The Sixth Circuit, however, did not cite a consistent
practice of courts imposing such fees on habeas
petitioners prior to the PLRA.5
4
See, e.g., 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, 524-525 (4th Cir. 1981); Lumbert v. Ill. Dep’t of
Corr., 827 F.2d 257, 259-260 (7th Cir. 1987); In re Williamson,
786 F.2d 1336, 1338-39 (8th Cir. 1986); Olivares v. Marshall, 59
F.3d 109, 111 (9th Cir. 1995); Collier v. Tatum, 722 F.2d 653,
655 (11th Cir. 1983). These cases were decided prior to Congress’s passage of the PLRA, which amended Section 1915 and
created a uniform fee regime for prisoners who file civil suits.
Apart from the Seventh Circuit, these courts do not appear to
impose partial filing fees on habeas petitioners.
5
The Government explained below that prior to the PLRA, “the
courts’ focus was on the abuse of conditions-of-confinement
litigation” and that there “were almost no cases involving
16
The Seventh Circuit agrees with the Sixth Circuit’s
position. In Longbehn, a federal prisoner filed a
habeas petition challenging his ineligibility for
parole. See 169 F.3d at 1083. The district court
acknowledged that the petition was not subject to the
PLRA’s partial filing fee regime, but it nevertheless
applied the PLRA’s formula “to set a partial filing fee
as a condition of proceeding in forma pauperis on
appeal.” Id. The district court reasoned that the
PLRA’s statutory formula for collecting fees was “a
reasonable accommodation of the interests involved
in selecting a partial fee.” Id. The court thus
“adopted the PLRA’s formula as a matter of discretion for setting a partial filing fee when the PLRA
does not apply of its own force.” Id.
The Seventh Circuit held that the district court’s
“exercise of discretion” was “sound.” Id. It explained
that although the PLRA does not apply, “every
litigant has a legal responsibility to pay the filing
and docketing fees to the extent feasible.” Id. The
Seventh Circuit “commend[ed]” the district court’s
approach “to other district judges.” Id. The Seventh
Circuit later affirmed its position in Walker v.
O’Brien, 216 F.3d 626 (7th Cir. 2000), emphasizing
“the right of the court to insist on some payment of
habeas petitions.” Appellee Br. at 17-18, C.A. Dkt. 32. Indeed,
the Government noted that several pre-PLRA cases reversed
the imposition of filing fees on habeas petitioners. See, e.g.,
Jones v. Zimmerman, 752 F.2d 76, 79 (3d Cir. 1985) (“[I]t is of
some significance that the action at issue is a habeas corpus
action pertaining to the validity of the underlying conviction * * * .”); Souder v. McGuire, 516 F.2d 820, 823 (3d Cir.
1975) (“The purpose of [§] 1915 is to provide an entré, not a
barrier, to the indigent seeking relief in the federal court.”).
17
fees wholly apart from the PLRA.” Id. at 639; see
also id. at 638 n.5.
3. The district courts are similarly split. Following
the Sixth Circuit’s decision in Samarripa, district
courts in the Sixth Circuit have continued to impose
partial filing fees on habeas petitioners. See, e.g.,
Greer v. Smith, No. 5:16-cv-338-JMH-CJS, 2019 WL
2062949, at *1 (E.D. Ky. May 9, 2019) (assessing
partial fee of $37.95). District courts in the Seventh
Circuit do the same. See, e.g., Homelsey v. Dittman,
No. 16-cv-47-bbc, 2017 WL 3927543, at *2 (W.D. Wis.
May 3, 2017) (assessing partial fee of $76.89); Ellis v.
Werlich, No. 16-cv-737-DRH, 2016 WL 10703623, at
*2 (S.D. Ill. Nov. 10, 2016) (assessing partial fee of
$19.50); Carlos v. Williams, No. 14-cv-1263, 2015 WL
5813004, at *2 (C.D. Ill. Oct. 5, 2015) (assessing
partial fee of $39.46); Wilborn v. Pfister, No. 10-0423DRH, 2014 WL 1220535, at *2 (S.D. Ill. Mar. 25,
2014) (assessing partial fee of $16.15); Rodriguez v.
Nicholson, No. 10-0077-DRH, 2013 WL 2383630, at
*2 (S.D. Ill. May 30, 2013) (assessing partial fee of
$99.88).
By contrast, district courts in the Fifth Circuit have
followed Garza’s direction in subsequent cases. See,
e.g., United States v. Cotton, No. 6:00-cr-60029, 2011
WL 13213858, at *2 & n.14 (W.D. La. Aug. 25, 2011)
(“[T]he prisoner must either pay the fee in full or
satisfy the requirements for proceeding in forma
pauperis.”). As a matter of practice, district courts
outside the Sixth and Seventh Circuits generally do
not impose partial fees on habeas petitioners. See,
e.g., Witkin v. Yates, No. CIV S-10-0091 GEB DAD P,
2013 WL 3148454, at *2 (E.D. Cal. June 19, 2013);
Ramsey v. Redmann, No. 3:11-cv-65, 2011 WL
18
6217073, at *4 (D.N.D. Dec. 14, 2011); Castillo v.
United States, No. 09-CV-4222 (ENV), 2011 WL
4592829, at *11 (E.D.N.Y. Sept. 30, 2011).
4. This Court’s intervention is plainly warranted.
There is a straightforward division in authority
among the courts of appeals on a question of federal
law. The circuit split extends to the proper interpretation of both the in forma pauperis statute and the
Federal Rules of Appellate Procedure, and this case
is a clean vehicle for deciding the question presented.
In the decision below, the Sixth Circuit acknowledged the split, which has persisted for almost a
decade, and which controls access to the courthouse
doors for thousands of habeas petitioners across the
country. The Court should grant certiorari.
II.
THE QUESTION PRESENTED IS
IMPORTANT.
The question presented is important for at least
three reasons.
First, Congress has provided that the “fees and
costs to be charged and collected in each court of
appeals” shall be prescribed by the Judicial Conference of the United States and “shall be reasonable
and uniform in all the circuits.” 28 U.S.C. § 1913
(emphasis added).
The divergence in authority
between the circuits on the question presented,
however, guarantees that the fees collected from
impoverished habeas petitioners will not be uniform
among the circuits.
In the Sixth and Seventh Circuits, a habeas petitioner who qualifies for in forma pauperis status may
nonetheless be required to pay hundreds of dollars to
seek habeas relief on appeal. In the Fifth Circuit—
19
and in nearly every other circuit as a matter of
practice—the very same habeas petitioner may
appeal the denial of habeas relief without paying an
appellate filing fee. This divergence in approaches
on a straightforward issue of law is directly contrary
to Congress’s mandate that the courts collect uniform filing fees, and it is ample reason to grant
certiorari.
Second, the decision below embraces a judicially
created scheme for collecting partial filing fees from
impoverished prisoners seeking habeas relief. Instead of requiring habeas petitioners to pay the full
fee or seek in forma pauperis status—in accordance
with the statute written by Congress—the Sixth and
Seventh Circuits have authorized a pay-as-you-can
approach. Congress, of course, could have adopted
such a scheme; indeed, it has already done so in the
PLRA for prisoners who file civil suits. But “Congress wrote the statute it wrote—meaning, a statute
going so far and no further.” Michigan v. Bay Mills
Indian Cmty., 572 U.S. 782, 794 (2014) (internal
quotation marks omitted). It is not the role of the
federal courts to step in and create a filing fee regime
for habeas petitioners.
The approach adopted by the Sixth Circuit, moreover, imposes significant burdens on habeas petitioners without the procedural safeguards afforded by
the PLRA. Under the PLRA, Congress limited the
initial partial filing fee to 20% of the prisoner’s
average monthly deposits or monthly balance,
whichever is greater. See 28 U.S.C. § 1915(b)(1).
The decision below includes no such limit. Petitioner
Mason, for example, was required to pay $400 to file
his appeal; his initial partial filing fee under the
20
PLRA would have been half that amount. See Pet.
App. 22a (describing Mason’s monthly deposits as
nearly $1,000). Petitioner Cole was required to pay
$50; under the PLRA, his filing fee would have been
less than $30. See id. at 27a (describing Cole’s
average monthly deposits as under $150).6 In effect,
the Sixth Circuit has adopted a version of the PLRA
that provides fewer protections for habeas petitioners
than Congress afforded prisoners challenging prison
conditions. This is yet another reason to grant the
petition.
Third, the “writ of habeas corpus is the fundamental instrument for safeguarding individual freedom
against arbitrary and lawless state action.” Harris v.
Nelson, 394 U.S. 286, 290-291 (1969). “It has long
been available in the federal courts to indigent
prisoners of both the State and Federal Governments
to test the validity of their detention.” Smith v.
Bennett, 365 U.S. 708, 712 (1961). “The scope and
flexibility of the writ—its capacity to reach all manner of illegal detention—its ability to cut through
barriers of form and procedural mazes—have always
been emphasized and jealously guarded by courts
and lawmakers.” Harris, 394 U.S. at 291. By requiring impoverished habeas petitioners to pay partial
filing fees, the Sixth and Seventh Circuits have
imposed a significant barrier—found nowhere in the
in forma pauperis statute—on petitioners seeking
6
The district court opinions below do not list Mason or Cole’s
average account balance, which does not appear to have been a
factor in determining the amount of the partial filing fee. See
Pet. App. 22a, 27a.
21
habeas relief. For this reason too, the Court should
grant certiorari and reverse.
III. THE DECISION BELOW IS WRONG.
The decision of the Sixth Circuit, on an important
question of federal law, is wrong. Text, structure,
history, and the Federal Rules of Appellate Procedure all point to the same conclusion: Courts lack
authority to impose partial filing fees on habeas
petitioners. The Court should grant certiorari and
reverse.
1. The text of Section 1915(a) is straightforward.
It states that “[s]ubject to subsection (b), any 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
who submits an affidavit that includes a statement
of all assets such prisoner possesses that the person
is unable to pay such fees or give security therefor.”
28 U.S.C. § 1915(a)(1) (emphasis added). Section
1915(a) thus gives courts two options: The court may
require a litigant to pay the full filing fee, or it may
permit the litigant to proceed “without prepayment
of fees.” Id. The text of Section 1915(a) nowhere
mentions partial filing fees, or in any way suggests
that courts are authorized to impose such fees.
Under the plain text of Section 1915(a), courts cannot require them.
2. The structure of Section 1915 further demonstrates that Congress did not authorize courts to
impose partial filing fees in habeas actions. Section
1915 specifies three situations in which a litigant is
not entitled to in forma pauperis status. First, a
court may not grant in forma pauperis status if a
22
litigant fails to “submit[ ] an affidavit.” Id. Second,
a court may not grant in forma pauperis status if
doing so would be inconsistent with Section 1915(b).
See id. Section 1915(b) in turn provides that a court
may not grant in forma pauperis status to a prisoner
in a civil suit. See id. § 1915(b)(1). Third, a court
may not grant in forma pauperis status on appeal “if
the trial court certifies in writing that [the appeal] is
not taken in good faith.” Id. § 1915(a)(3).
As this Court has emphasized, “[w]here Congress
explicitly enumerates certain exceptions * * *, additional exceptions are not to be implied, in the absence of evidence of contrary legislative intent.”
TRW Inc. v. Andrews, 534 U.S. 19, 28 (2001) (internal quotation marks omitted); see also Univ. of Tex.
Sw. Med. Ctr. v. Nassar, 570 U.S. 338, 353 (2013)
(“Just as Congress’ choice of words is presumed to be
deliberate, so too are its structural choices.”). Here,
Congress explicitly considered when a prisoner is
entitled to proceed in forma pauperis on appeal. A
prisoner who does not submit an affidavit, or who
files a civil suit, or who appeals in bad faith, is not
entitled to such status. Congress did not create a
similar exception for prisoners who can afford to pay
part—but not all—of the appellate filing fee in a
habeas action. The Court should apply the text of
Section 1915(a) as written and conclude that petitioners may appeal without payment of a partial fee.
The contrast between Sections 1915(a) and (b),
moreover, is stark: Section 1915(b) creates a uniform
mechanism for collecting filing fees from prisoners in
civil actions, including an initial partial filing fee and
installment payments until the full fee is paid. See
28 U.S.C. § 1915(b)(1)-(2). This provision sets the
23
amount of the fee and explains how it should be
collected. See id. Section 1915(a), in contrast, permits courts to grant in forma pauperis status to
habeas petitioners—or to deny them that status—
but it does not provide for the collection of any fees
that fall in-between.
If Congress had wanted to require habeas petitioners to pay a partial filing fee, it could have done so.
It did not. Courts must “give effect to Congress’
choice.” Nassar, 570 U.S. at 354 (internal quotation
marks omitted). The Sixth Circuit’s assumption that
Congress, by adopting a uniform filing fee regime for
prisoners who file civil suits, intended to sanction the
ad hoc imposition of fees on habeas petitioners, is
inconsistent with the structure of Section 1915. As
the Fifth Circuit explained in Garza, the “only statute that authorizes payment of an initial partial
filing fee” is the PLRA, and it simply “does not apply”
to habeas appeals. Garza, 585 F.3d at 890.
3. History similarly supports Petitioners’ position.
In the decision below, the Sixth Circuit concluded
that Congress should have used more definitive
language—such as “without prepayment of any
fees”—if it meant to prohibit courts from collecting
partial filing fees. Pet. App. 4a (emphasis added and
internal quotation marks omitted). But there is
strong historical evidence of Congress’s intent: In
the first in forma pauperis statute, adopted in 1892,
Congress required a litigant seeking in forma pauperis status to submit an affidavit stating that
“because of his poverty, he is unable to pay the costs
of said suit or action which he is about to commence,
or to give security for the same.” Act of July 20,
1892, ch. 209, § 1, 27 Stat. 252 (emphases added).
24
This statutory language makes clear that Congress’s
original intent in adopting the in forma pauperis
statute was to permit litigants to proceed without
paying the entire cost of suit, not part of that cost.
This Court, moreover, has construed the in forma
pauperis statute narrowly in the past. See Adkins,
335 U.S. at 337 (emphasizing that Section 1915
“provide[s] that a court may exercise a limited judicial discretion in the grant or denial of the right” to
proceed in forma pauperis); see also Bradford v.
Southern Ry. Co., 195 U.S. 243, 251 (1904) (“[A]n act
giving the right to prosecute in forma pauperis
cannot be extended by implication beyond its
terms * * * .”).
4. Rule 24 confirms that courts lack authority to
impose partial fees. It states that if a district court
grants in forma pauperis status, “the party may
proceed on appeal without prepaying or giving security for fees and costs, unless a statute provides
otherwise.” Fed. R. App. P. 24(a)(2). In the proceedings below, the district courts granted in forma
pauperis status. See Pet. App. 18a-27a. As the Fifth
Circuit held in Garza, no statute provides that a
habeas petitioner who is granted in forma pauperis
status may nevertheless be required to pay a partial
filing fee. See 585 F.3d at 890. Under the plain text
of Rule 24, Petitioners must accordingly be permitted
to proceed on appeal without paying such fees. The
clear conflict between the Sixth Circuit’s decision
and Rule 24 is yet another reason that the decision
below is wrong.
In short, the traditional tools of statutory interpretation all lead to the same conclusion: Section 1915
does not grant courts authority to impose partial
25
filing fees on habeas petitioners, and Rule 24 provides that they cannot collect them. The Court
should reverse.
IV. THIS CASE IS A CLEAN VEHICLE TO
ADDRESS THE QUESTION PRESENTED.
This case is a clean vehicle to address the question
presented. The district courts below held that Petitioners could not afford to pay the full filing fee—and
were thus entitled to in forma pauperis status—but
could nevertheless afford to pay a lesser fee. See Pet.
App. 19a, 20a, 22a, 25a, 27a. Petitioners challenged
the imposition of the partial filing fees in the Sixth
Circuit, which appointed counsel to argue both sides
of the issue. See id. at 3a-4a. The Sixth Circuit
issued a published opinion addressing the question
presented and acknowledging the split. See id. at 8a9a. Four of the five Petitioners paid the filing fee
following the Sixth Circuit’s decision, and they are
seeking the return of that fee. The fifth Petitioner
did not pay the partial filing fee, and his case was
dismissed for want of prosecution—preventing him
from pursuing the merits of his habeas claim. This
petition presents a straightforward question of law
that affects not only the five Petitioners in this case
but also thousands of habeas petitioners across the
country. The question presented has divided the
circuits, and the split has persisted for almost a
decade. The Court should grant certiorari and
reverse.
26
CONCLUSION
The petition for a writ of certiorari should be
granted.
Respectfully submitted,
NEAL KUMAR KATYAL
KATHERINE B. WELLINGTON
Counsel of Record
HOGAN LOVELLS US LLP
555 Thirteenth Street, N.W.
Washington, D.C. 20004
(202) 637-5600
katherine.wellington@hoganlovells.com
Counsel for Petitioners
AUGUST 2019
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.