Petition for Writ of Certiorari — Jay Hymas, dba Dosmen Farms, Petitioner v. Department of the Interior

No. 23-

JAY HYMAS, D/B/A DOSMEN FARMS,

Petitioner,

v.

UNITED STATES DEPARTMENT OF THE INTERIOR,

Respondent.

On Petition for a Writ of Certiorari to the

United States Court of Appeals

for the Ninth Circuit

PETITION FOR A WRIT OF CERTIORARI

DOUGLAS A. SMITH

MICHAEL A. SCODRO

MAX W. HIRSCH

Counsel of Record

Mayer Brown LLP

BRETT E. LEGNER

355 S. Grand Avenue

Mayer Brown LLP

Los Angeles, CA 20006 71 S. Wacker Dr.

(213) 229-9500

Chicago, IL 60602

(312) 782-0600

mscodro@mayerbrown.com

Counsel for Petitioner

QUESTION PRESENTED

Congress has determined that individuals should

not be denied access to federal court based on their

economic circumstances. To effectuate that important

policy, Congress enacted 28 U.S.C. § 1915(a)(1), which

governs in forma pauperis applications for all litigants. The statute provides in relevant part:

“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.”

Does 28 U.S.C. § 1915(a)(1) grant district courts

authority to set a partial filing fee for in forma pauperis litigants, as the Ninth Circuit below and the

Sixth and Seventh Circuits have held, or only to waive

prepayment of litigation fees in full as the Fifth Circuit has held?

ii

PARTIES TO THE PROCEEDING AND RULE

29.6 STATEMENT

The petitioner in this case is Jay Hymas, doing

business as Dosmen Farms, and the respondent is the

United States Department of the Interior.

Petitioner is an individual and therefore no

Rule 29.6 disclosure is required.

RELATED PROCEEDINGS

None.

iii

TABLE OF CONTENTS

Page

QUESTION PRESENTED..........................................i

PARTIES TO THE PROCEEDING AND

RULE 29.6 STATEMENT .............................. ii

RELATED PROCEEDINGS ..................................... ii

OPINIONS BELOW ................................................... 1

JURISDICTION ......................................................... 1

STATUTORY PROVISIONS INVOLVED ................ 1

STATEMENT ............................................................. 1

REASONS FOR GRANTING THE PETITION ........ 6

I.

The Circuits Are Split Over Whether

§ 1915(a)(1) Authorizes a District Court

To Impose Partial Filing Fees On

Litigants proceeding IFP. ................................ 6

II.

The Question Presented Is Important. ......... 11

III.

The Ninth Circuit’s Decision Is Wrong

On The Merits. ............................................... 12

IV.

This Case Is An Excellent Vehicle For

Answering The Question Presented. ............ 15

CONCLUSION ......................................................... 15

iv

TABLE OF AUTHORITIES

Page(s)

Cases

Crawford Fitting Co. v. J. T. Gibbons, Inc.,

482 U.S. 437 (1987) ........................................ 14, 15

Garza v. Thaler,

585 F.3d 888 (5th Cir. 2009) ....................... 5-10, 13

Harris v. Nelson,

394 U.S. 286 (1969) .............................................. 12

In re Williamson, 786 F.2d 1336 (8th Cir. 1986)...... 10

Intel Corp. Inv. Pol’y Comm. v. Sulyma,

140 S. Ct. 768 (2020) ............................................ 14

LaFontaine v. Tobin,

2013 WL 4048571 (N.D. Iowa Aug. 9, 2013) ......... 9

Leslie v. Bryant,

752 F. App’x 660 (10th Cir. 2018) ......................... 8

Longbehn v. United States,

169 F.3d 1082 (7th Cir. 1999) .......................... 9, 10

Olivares v. Marshall,

59 F.3d 109 (9th Cir. 1995) ...................... 3, 4, 5, 10

Robbins v. Switzer,

104 F.3d 895 (7th Cir. 1997) ................................ 10

Samarripa v. Ormond,

917 F.3d 515 (6th Cir. 2019) ........................ 8, 9, 10

v

TABLE OF AUTHORITIES—continued

Page(s)

Thomas v. Saul,

2020 WL 13573499 (N.D. Tex. Aug. 3, 2020) ........ 8

Thomas v. Zatecky,

712 F.3d 1004 (7th Cir. 2013) ............................ 2, 3

United States v. Cotton,

2011 WL 13213858 (W.D. La. Aug. 25, 2011) ....... 8

White ex rel. Diggs v. Barnhart,

2002 WL 1760980 (M.D.N.C. July 30, 2002) ...... 10

Wilson v. Twitter,

2019 WL 540870 (W.D. Pa. Jan. 16, 2019) ........... 9

STATUTES AND RULES

28 U.S.C. § 1254(1) ...................................................... 1

28 U.S.C. § 1821 .................................................... 2, 15

28 U.S.C. § 1913 .................................................... 2, 11

28 U.S.C. § 1914 .................................................... 2, 15

28 U.S.C. § 1914(a) .................................................. 3, 4

28 U.S.C. § 1914(a)-(b) .............................................. 11

28 U.S.C. § 1915 .................................... 5, 7, 10, 13, 15

28 U.S.C. § 1915(a) .............................. 2, 5, 8, 9, 10, 15

28 U.S.C. § 1915(a)(1) .............................. 2, 6, 8, 10-14

vi

TABLE OF AUTHORITIES—continued

Page(s)

28 U.S.C. § 1915(b)(1) ................................... 2, 8, 9, 10

OTHER AUTHORITIES

Federal Rule of Appellate Procedure 24 ..................... 7

Federal Rule of Civil Procedure 54(d) ................ 14, 15

PETITION FOR WRIT OF CERTIORARI

Petitioner Jay Hymas respectfully petitions for

a writ of certiorari to review the judgment of the

United States Court of Appeals for the Ninth Circuit

in this case.

OPINIONS BELOW

The Ninth Circuit’s opinion is reported at 73 F.4th

763, and is reproduced at Pet. App., infra, 1a-10a. The

district court’s order is unreported and is reproduced

at Pet. App., infra, 13a-14a. The magistrate judge’s

report and recommendation is unreported and is reproduced at Pet. App., infra, 15a-18a.

JURISDICTION

The Ninth Circuit entered judgment on July 12,

2023. This Court granted Hymas an extension of time

to file this petition to February 18, 2024. Pursuant to

Supreme Court Rule 30(1), the due date for the petition is February 20, 2024, which is the first non-weekend, non-holiday day after the due date. This Court

has jurisdiction under 28 U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

28 U.S.C. §§ 1914 and 1915 are reproduced at

Pet. App., infra,19a-23a.

STATEMENT

1. Congress has long authorized courts to exercise

their discretion to waive prepayment of court fees and

costs in their entirety for litigants based on their economic circumstances. Before April 25, 1996, Congress

gave all federal courts the power to “authorize the

commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein

2

without prepayment of fees or security therefor” by

persons who by affidavit state that they are “unable

to pay such costs.” 28 U.S.C. § 1915(a).

Effective April 1996, Congress amended this authority as part of the Prison Litigation Reform Act

(PLRA), which created two different systems, one for

prisoners acting as plaintiffs or appellants, and one

for all other in forma pauperis (IFP) litigants. Following the amendment, 28 U.S.C. § 1915(b)(1) states that

a prisoner plaintiff “shall be required to pay the full

amount of the filing fee,” but the court may assess and

collect “a partial payment of fees” initially and the remainder through installments. Other than carving

out that special rule for certain incarcerated litigants,

the text of 28 U.S.C. § 1915(a)(1) remained substantively unchanged.

Subsection 1915(a)(1)’s phrase “without prepayment of fees” refers to any fees an IFP litigant might

incur during the course of the litigation, including the

filing fee to start the litigation (28 U.S.C. § 1914), the

per diem and mileage fees for witnesses the IFP litigant calls (id. § 1821), transcript and printed record

fees (id. § 1915(f)), the fee for filing an appeal (id.

§ 1913), and the District Court fee to file a petition for

certiorari to this Court (id. § 1917). See Thomas v.

Zatecky, 712 F.3d 1004, 1005 (7th Cir. 2013) (stating

that § 1915(a)(1) “supplies judges’ authority to allow

litigation to proceed without prepayment of the fees

required by § 1913 and other statutes, such as 28

U.S.C. §§ 1912, 1914, 1917, 1920, and 1921”). Subsection 1915(a)(1) thus permits a party with IFP status

to proceed IFP throughout the litigation “without prepayment of fees” the party might incur.

2. On February 25, 2020, Petitioner filed a pro se

complaint in the U.S. District Court for the Eastern

3

District of Washington against the United States Department of the Interior (the Department). C.A. E.R.

41-43. The complaint asserts violations of federal law

pertaining to the leasing of Department-controlled

farmland. Id. at 41. Petitioner alleges that the Department’s land-leasing practices fail to comply with the

competition and notice requirements in the Federal

Grant and Cooperative Agreement Act, the Competition in Contracting Act, and the Administrative Procedure Act. Ibid. Petitioner also alleges that the Department violated federal law by removing an irrigation system and planting seeds on leased property. Id.

at 42.

3. After rejecting Petitioner’s initial and renewed

applications to proceed IFP, the magistrate judge

granted Petitioner’s second renewed application “in

part.” Citing Olivares v. Marshall, 59 F.3d 109 (9th

Cir. 1995), the magistrate required Petitioner to pay

a partial filing fee of $100 instead of the $350 fee set

by Congress in 28 U.S.C. § 1914(a). Further, the magistrate directed that the partial fee “shall also satisfy

any Administrative Fee,” which would have been the

then-$52 administrative fee for filing a civil action set

by the Judicial Conference of the United States pursuant to its authority under § 1914(b). In sum, the

magistrate set Petitioner’s filing fee at $100 instead of

the required, combined fee of $402. C.A. E.R. 15.

4. Petitioner moved for reconsideration of the order setting a partial filing fee, explaining that he had

“no income in the past 6 months” and would have to

“deplete [his assets] to the point of zero” were he to

pay the partial filing fee. C.A. E.R. 14. He also argued

that imposing a partial filing fee on a non-prisoner

4

civil litigant, such as himself, was not permitted, reasoning that the “Olivares case and those cited by it are

dealing with . . . prisoners.” Ibid. This was a distinguishing factor, Petitioner argued, because unlike

him, an inmate has “all his necessities of life provided

for him” by virtue of being incarcerated and therefore

is not “put in the untenable position of choosing the

partial filing fee or life’s essentials.” C.A. E.R. 13, 14.

5. The magistrate denied the motion for reconsideration and reaffirmed his assessment of “a partial filing fee of $100.00 to fulfill the required filing and administrative fees.” Pet. App., infra, 15a-18a. Regarding the court’s authority to demand a partial fee, the

magistrate reasoned that “[d]istrict courts have significant discretion [in] setting the amount of payment

so long as the exercise of discretion serves the ‘in

forma pauperis statute’s goal[s] of granting equal access to the courts regardless of economic status . . . ,

defraying some of the judicial costs of litigation[,] and

screening out frivolous claims.’” Ibid. (quoting Olivares, 59 F.3d at 111 (emphasis added)). Noting that

“[c]ourts in the Ninth Circuit have repeated[ly] relied

on Olivares in civil proceedings,” the magistrate exercised “discretion” to “recommend[] the previously assessed partial filing fee of $100 be affirmed.” Pet.

App., infra, 17a.

6. Without elaboration, the district court adopted

the magistrate’s report and recommendation and ordered Petitioner to “pay a filing fee of $100,” which

“shall also satisfy any Administrative Fee,” within 14

days. Pet. App., infra, 14a. Hymas could not pay the

$100 partial filing fee and appealed instead of proceeding with his case. See Notice of Appeal, ECF No.

27.

5

7. On appeal, the Ninth Circuit appointed pro

bono counsel and asked the parties to address, inter

alia, “whether under Olivares . . . , a district court can

order a non-prisoner to pay a partial filing fee.” C.A.

Order 2, ECF No. 6. Relying on the plain language of

§ 1915(a) and the Fifth Circuit’s decision in Garza v.

Thaler, 585 F.3d 888, 890 (5th Cir. 2009), Petitioner

argued that district courts may either make a plaintiff

prepay the full filing fee or waive it entirely, but the

court may not impose a partial fee on a non-prisoner

plaintiff. C.A. Appellant’s Br. 3.

The Ninth Circuit rejected this argument and affirmed. Without citing Garza, the court held that district courts have the authority to set partial fees, reasoning that district courts’ “‘greater power to waive all

fees includes the lesser power to set partial fees,’” and

that “partial filing fees serve the goals of the IFP statute.” Pet. App., infra, 4a (quoting Olivares, 59 F.3d at

111 (emphasis added)). The court acknowledged that,

post-Olivares, the PLRA amended § 1915 to distinguish between prisoner and non-prisoner litigants.

See Pet. App., infra, 4a-6a. But the court rejected Petitioner’s argument that the amendment rendered the

holding in Olivares—which involved a prisoner plaintiff—irrelevant for non-prisoner plaintiffs like Petitioner. See Pet. App., infra, 6a-8a.

8. The Ninth Circuit denied Petitioner’s petition

for rehearing en banc, Pet. App., infra, 11a, and Petitioner timely filed this petition for certiorari.

9. The district court has since granted Petitioner’s

motion to stay proceedings in that court pending resolution of any proceedings in this Court. See D. Ct.

Order, ECF No. 46.

6

REASONS FOR GRANTING THE PETITION

This petition squarely presents an important, frequently recurring question at the heart of parties’ access to the courts, over which the circuit courts are

split. In 28 U.S.C. § 1915(a)(1), Congress recognized

that an individual’s economic circumstances should

not bar that individual from accessing the courts and

accordingly gave district courts authority to waive the

prepayment of litigation “fees”—including case-initiating fees (at issue here), U.S. marshal fees for effectuating service, witness fees, and appellate fees—if

the litigant shows an inability to pay in a financial affidavit. But the circuits are split over whether Congress has granted district courts authority to set a

partial filing fee, or whether Congress only authorized

district courts to waive in full prepayment of litigation

“fees,” including filing fees, for those who qualify for

IFP status. This Court’s intervention is needed to resolve the circuit split over this issue and thereby guarantee that courts apply this important access-tocourts statute uniformly to all non-PLRA litigants.

I. THE

CIRCUITS

ARE

SPLIT

OVER

WHETHER § 1915(A)(1) AUTHORIZES A DISTRICT COURT TO IMPOSE PARTIAL FILING FEES ON LITIGANTS PROCEEDING

IFP.

The Ninth Circuit deepened an existing split over

whether § 1915(a)(1) authorizes district courts to impose prepayment of partial filing fees on litigants

seeking to proceed IFP.

1. In Garza v. Thaler, 585 F.3d 888 (5th Cir. 2009)

(per curiam), the Fifth Circuit held that “there is ‘no

7

authority’” in § 1915 or Federal Rule of Appellate Procedure 241 to “grant” an IFP motion while requiring

partial payments of the appellate filing fee. 585 F.3d

at 890. In that case, a magistrate judge granted an incarcerated habeas corpus petitioner leave to appeal

IFP but ordered him to pay an initial partial appellate

filing fee, with installment payments due on the remainder. Id. at 889-90. The magistrate “explicitly denie[d] that [he was] requiring payment of fees pursuant to the [installment payment plan in the] PLRA,”

as codified in § 1915(b) (because habeas petitioners

are treated like non-prisoner litigants under § 1915).

Ibid. Instead, he set the amounts of the initial partial

filing fee and later installments on the theory that it

was simply “within the court’s discretion to order payment of fees when it does not impose undue hardship

on a petitioner.” Id. at 890.

The Fifth Circuit reversed. The court reasoned

that under Federal Rule of Appellate Procedure 24,

litigants granted IFP status “may proceed on appeal

without prepaying or giving security for fees and

costs, unless a statute provides otherwise.” 585 F.3d at

890 (some emphasis omitted). And no statute authorized the court to set an initial partial fee. Ibid. The

“only statute that authorizes payment of an initial

partial filing fee, with the remainder in installments,

1 Subsection (a)(1) of Federal Rule of Appellate Procedure 24 pro-

vides in relevant part that, “[e]xcept 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.” Subsection

(a)(2) of Federal Rule of Appellate Procedure 24 provides in relevant part that, “[i]f the district court grants the motion, the party

may proceed on appeal without prepaying or giving security for

fees or costs, unless a statute provides otherwise. If the district

court denies the motion, it must state its reasons in writing.”

8

is the PLRA,” as codified in § 1915(b) and applicable

only to prisoners. Ibid. Accordingly, the “district court

did not have either the discretion or the inherent

power” under § 1915(a) to require prepayment of an

initial partial filing fee or create an installment payment plan. See ibid; see also Leslie v. Bryant, 752 F.

App’x 660, 664 (10th Cir. 2018) (for Leslie, a habeas

petitioner not subject to § 1915(b), “vacat[ing] those

portions of the [district court’s] orders assessing partial payment of fees. Notwithstanding this directive,

Leslie is reminded that § 1915(a)(1) excuses only prepayment of fees; he remains liable to pay the full

amount of the appellate filing and docketing fees” (emphasis added)).2

2. The Sixth Circuit reached the opposite conclusion in Samarripa v. Ormond, 917 F.3d 515, 519 (6th

Cir. 2019), recognizing that Garza “took a different

approach.” In Samarripa, federal prisoners appealing

denials of their habeas corpus petitions sought to

avoid prepaying the then-$505 appellate filing fee as

litigants proceeding IFP. Id. at 516-517. Once again,

district courts granted the motions in part under

2 District courts within the Fifth Circuit have not been consistent

in applying Garza. For instance, the court followed Garza’s rule

in United States v. Cotton, 2011 WL 13213858, at *2 & n.14 (W.D.

La. Aug. 25, 2011), holding that when § 1915(b)(1) does not apply,

“there is no option for installment payments,” and the litigant

“must either pay the fee in full or satisfy the requirements for

proceeding in forma pauperis,” in which case prepayment of all

court fees would be waived. But in Thomas v. Saul, 2020 WL

13573499, at *1 (N.D. Tex. Aug. 3, 2020), the court cited and followed the Sixth and Seventh Circuit decisions discussed below,

without citing Garza, and held that § 1915(a)(1) authorized

courts to require a partial filing fee rather than taking an all-ornothing approach to prepayment.

9

§1915(a), this time requiring each petitioner to make

a one-time, partial prepayment of the appellate filing

fee. Id. at 517. And although the federal government

in that case sided with the petitioners and “agreed that

the district courts had no such authority” to order partial payment, ibid., the Sixth Circuit affirmed. The

court concluded that the Fifth Circuit’s decision in

Garza was “not convincing” and held that the PLRA

language codified in § 1915(b)—specifically permitting an initial partial payment (with later installment

payments) only for prisoners—did nothing to change

courts’ previously recognized discretion to order partial payment of fees under § 1915(a). Id. at 517-519.

3. Samarripa favorably cited the Seventh Circuit’s decision in Longbehn v. United States, 169 F.3d

1082, 1083 (7th Cir. 1999), which also held that courts

may assess an initial partial filing fee in cases not covered by the PLRA. Samarripa, 917 F.3d at 519. There,

the district court required a habeas petitioner to pay

a partial fee to proceed IFP on appeal, and to pay the

remainder of the full statutory fee in later installments. Longbehn, 169 F.3d at 1083. In short, the court

applied the rule codified in § 1915(b)(1) to a litigant

not governed by § 1915(b). Ibid. The Seventh Circuit

affirmed, announcing that “[p]artial-payment requirements remain appropriate even when the PLRA does

not apply.” Ibid. 3

3 District courts in other circuits have also followed the rule that

§ 1915(a) “allows the district court to exercise discretion in nonprisoner actions and require that the filing fee be made in installment payments” or “to require that a non-prisoner litigant seeking IFP status pay a one-time partial filing fee.” Wilson v. Twitter, 2019 WL 540870, at *3 (W.D. Pa. Jan. 16, 2019); see also

LaFontaine v. Tobin, 2013 WL 4048571, at *2 (N.D. Iowa Aug. 9,

10

The Seventh Circuit limited the district court’s

discretion, reasoning that the authority to assess an

initial partial filing fee does not alleviate the litigant’s

responsibility to pay the entire fee eventually. Longbehn, 169 F.3d at 1083 (“[E]very litigant has a legal

responsibility to pay the filing and docketing fees to

the extent feasible. All that permission to proceed in

forma pauperis has ever meant is that the fees need

not be pre-paid”); see Robbins v. Switzer, 104 F.3d 895,

898 (7th Cir. 1997) (“Section 1915(b)(1) says that prisoners are liable for the full fees, but so is every other

person who proceeds in forma pauperis; all § 1915(a)

does for any litigant is excuse the prepayment of fees.

Unsuccessful litigants are liable for fees and costs and

must pay when they are able.”). Thus, in the Seventh

Circuit’s view, § 1915 does not permit a court to set fee

amounts different than those established by Congress

or the Judicial Conference. See also In re Williamson,

786 F.2d 1336, 1338, 1340 (8th Cir. 1986) (reasoning,

in pre-PLRA case, that “Section 1915 contains no provision indicating that a court may require a litigant to

pay a portion of the fees and costs if he cannot pay the

full amount,” but holding that district court could

nonetheless impose an initial partial fee combined

with a payment plan to satisfy the full fee amount).

4. In this case, the Ninth Circuit deepened the

split by siding with Samarripa and Longbehn (and the

Ninth Circuit’s pre-PLRA decision in Olivares)—without acknowledging Garza—and holding that

§1915(a)(1) allows courts to set partial filing fees for

non-prisoner litigants.

2013); White ex rel. Diggs v. Barnhart, 2002 WL 1760980, at *1

(M.D.N.C. July 30, 2002).

11

II. THE QUESTION

PORTANT.

PRESENTED

IS

IM-

1. The question presented is not only recurring

and unsettled, but it is also extraordinarily important

to ensuring uniform access to the judicial system. Because of the current circuit split, a litigant seeking to

file suit IFP in the Central District of California might

be forced to prepay a $100 filing fee before proceeding

with her case, while that same litigant, had she filed

in the Western District of Louisiana, would not be required to prepay any filing fees. Unquestionably, access to federal court should not turn on geography,

something Congress expressly recognized, for example, by setting the district court filing fee nationwide

at $350 and having the Judicial Conference set other

fees for all district courts, see 28 U.S.C. § 1914(a)-(b),

and authorizing the Judicial Conference to “charge[]

and collect[]” appellate fees in a manner that is “reasonable and uniform in all circuits.” 28 U.S.C. § 1913

(emphasis added). The Ninth Circuit’s decision converts courts’ authority to waive the prepayment requirement for litigation fees, including filing fees, for

litigants proceeding IFP into the power to set fees and

thereby control access to the district and appellate

courts. But the right to impose financial conditions on

a litigant’s ability to access the courts is a power Congress alone possesses. The Ninth Circuit’s decision

thus usurps Congress’s fee-setting role and ignores

that § 1915(a)(1) allows only for a waiver of the prepayment requirement for already prescribed litigation

fees. The Ninth Circuit rule does so, moreover, without any of the protections available to non-habeas

prisoners under the PLRA, codified in § 1915(b).

12

2. The case has nationwide importance and the

potential to affect the massive number of non-prisoner

litigants seeking IFP status, both in district court and

on appeal. It is critical that federal courts remain

available for civil rights and other claims advanced by

these litigants, without court access depending on the

happenstance of the location of the federal courthouse.

Likewise, the Ninth Circuit’s rule in this case affects prisoners seeking a federal writ of habeas corpus, “the fundamental instrument for safeguarding

individual freedom against arbitrary and lawless

state action.” Harris v. Nelson, 394 U.S. 286, 290-291

(1969).

3. In short, the question presented is important,

and unless this Court provides guidance, litigants

seeking to proceed IFP will continue to receive different treatment depending on the district in which they

litigate. Only this Court can resolve this inconsistency.

III. THE NINTH CIRCUIT’S

WRONG ON THE MERITS.

DECISION

IS

1. The plain language of § 1915(a)(1) permits

courts to “authorize the commencement” of any suit or

action “without prepayment of fees.” (emphasis

added.) Read naturally, this means that, based on its

review of the IFP applicant’s financial affidavit, the

court either waives prepayment of all “fees” the IFP

litigant might incur during the litigation, including

the filing fee needed to initiate litigation, or none at

all. Subsection 1915(a)(1) does not permit a district

court to engage in a fee-by-fee analysis whereby it has

authority to waive one fee but not another, or only

waive part of a fee, thereby setting a new, partial fee.

13

As the Fifth Circuit recognized in Garza, “there is ‘no

authority’” in § 1915 to allow a district court to impose

partial filing fees. 585 F.3d at 890.

2. The Judicial Conference appears to agree that

§ 1915(a)(1) requires the “all-or-nothing” approach in

Garza. The “District Court Miscellaneous Fee Schedule” established by the Judicial Conference states:

“Administrative fee for filing a civil action, suit, or

proceeding in a district court, $55.” Pet. App., infra,

19a. It then states, “This fee does not apply to applications for a writ of habeas corpus or to persons

granted in forma pauperis status under 28 U.S.C.

§ 1915.” Ibid. But under the Ninth Circuit’s rule, the

district court could ignore the statement that the $52

“fee does not apply” to IFP litigants and could invoke

§ 1915(a)(1) to charge the litigant a partial fee of $20.

Or it could order, as in Hymas’ case, “a partial filing

fee of $100.00 to fulfill the required filing and administrative fees,” Pet. App., infra, 16a, even though the

administrative fee “does not apply” to persons granted

IFP status, on the theory that the person is only being

granted partial, not full, IFP status.

3. Subsection 1915(b) further supports Petitioner’s (and Garza’s) reading of § 1915(a)(1). Subsection 1915(b)(1) provides that a “court shall assess and,

when funds exist, collect, as a partial payment of any

court fees required by law, an initial partial filing fee.”

Subsection (b)(2) then requires that, “[a]fter payment

of the initial partial filing fee, the prisoner shall be

required to make [specified] monthly payments” until

“the filing fees are paid.” Further, subsection (b)(4)

states that “[i]n no event shall a prisoner be prohibited

from bringing a civil action” for lack of ability to pay

the “initial partial filing fee.”

14

Subsection 1915(b) thus uses the word “partial”

four times. If Congress intended § 1915(a)(1) to give

district courts the discretion to require partial fee payments, § 1915(b) shows that Congress knew precisely

how to do so. Yet, when it enacted the PLRA, it did not

include any such language in § 1915(a)(1). Courts

“generally presume that Congress acts intentionally

and purposely when it includes particular language in

one section of a statute but omits it in another.” Intel

Corp. Inv. Pol’y Comm. v. Sulyma, 140 S. Ct. 768, 777

(2020) (cleaned up).

4. Subsection 1915(c) offers still more support for

Petitioner’s reading. That subsection provides that,

“[u]pon the filing of an affidavit in accordance with

subsections (a) and (b) and the prepayment of any partial filing fee as may be required under subsection (b),

the court may direct payment by the United States of

[certain] expenses.” Thus, Congress explicitly

acknowledged that partial filing fees are permitted

under subsection (b), while conspicuously omitting

any reference to “partial filing fees” under subsection

(a). If Congress meant to authorize courts to impose

partial fees under subsection (a)(1), then it would

have used the word “partial” in connection with those

fees as well in subsection (c).

5. Finally, the decision below is difficult to reconcile with this Court’s reasoning in Crawford Fitting

Co. v. J. T. Gibbons, Inc., 482 U.S. 437 (1987). Crawford held that the district court exceeded its discretion

when it taxed the losing party above the then-$30-perday witness fee provided in Federal Rule of Civil Procedure 54(d), reasoning that the “discretion granted

by Rule 54(d) is not a power to evade this specific congressional command” that a witness “shall” be paid an

15

attendance fee of $30 per day for each day’s attendance under 28 U.S.C. § 1821. 482 U.S. at 442. “Rather,

it is solely a power to decline to tax, as costs, the items

enumerated in § 1920.” Ibid. Like Rule 54(d), the discretion § 1915(a) grants is not the “power to evade” the

specific congressional command to charge the specific

fees prescribed by 28 U.S.C. § 1914, namely the $350

filing fee set by Congress and the other fees set by the

Judicial Conference.

For all of these reasons, the Ninth Circuit erred,

and the judgment below should be reversed.

IV. THIS CASE IS AN EXCELLENT VEHICLE

FOR ANSWERING THE QUESTION PRESENTED.

This case is an ideal vehicle to answer the question presented. The parties exhaustively briefed the

meaning of § 1915 in the Ninth Circuit, and the court

expressly decided that issue in a thorough, published

opinion. Four Circuits have now weighed in on the issue. It is a purely legal question that does not turn on

any disputed issues of fact. And because the case is

stayed below, there are no jurisdictional or mootness

issues that would prevent this Court from answering

the question presented and resolving the circuit split.

CONCLUSION

The petition for a writ of certiorari should be

granted.

Respectfully submitted.

MICHAEL A. SCODRO

DOUGLAS A. SMITH

Counsel of Record

MAX W. HIRSCH

BRETT E. LEGNER

Mayer Brown LLP

Mayer Brown LLP

355 S. Grand Avenue

Los Angeles, CA 20006 71 S. Wacker Dr.

Chicago, IL 60602

(213) 229-9500

(312) 782-0600

mscodro@mayerbrown.com

Counsel for Petitioner

FEBRUARY 2024