[00:00:01] Speaker 01:
Thank you and good morning, your honor.

[00:00:03] Speaker 01:
Good morning.

[00:00:04] Speaker 01:
May it please the court, George Mills on behalf of plaintiffs and appellants, Topaz Johnson and Ian Henderson.

[00:00:10] Speaker 01:
I'd like to reserve three minutes for rebuttal.

[00:00:12] Speaker 03:
All right.

[00:00:13] Speaker 03:
Good luck.

[00:00:14] Speaker 03:
Thank you, your honor.

[00:00:19] Speaker 01:
As this appeal comes to you, there is substantial agreement between the parties.

[00:00:24] Speaker 01:
Both sides agree that nothing in the Prison Litigation Reform Act categorically bars Joinder under Rule 20.

[00:00:32] Speaker 01:
The Supreme Court has held that Congress must be explicit to depart from the standard rules of federal procedure.

[00:00:39] Speaker 03:
So we don't have anything in the Ninth Circuit on this, though, right?

[00:00:42] Speaker 03:
So it's a question of, and I did see that both sides basically agreed to it, but just because you do agree to things, I don't automatically, but in terms of, after I thought about it, in this instance, I'm not gonna fight you on it, I can't speak for my panel members, but maybe in terms of timing,

[00:01:07] Speaker 03:
if either of my colleagues want to ask about the first issue, we could do that now, and then if not, we can move to paying the $350.

[00:01:20] Speaker 04:
I have no questions on that first point.

[00:01:25] Speaker 03:
All right, so I think your time can be best spent on the other issue.

[00:01:29] Speaker 03:
Thank you.

[00:01:30] Speaker 01:
Sure, Your Honor.

[00:01:33] Speaker 01:
Our baseline position is that because the magistrate judge misinterpreted the Prison Litigation Reform Act on that key issue, this court can, at a minimum, send the case back.

[00:01:42] Speaker 03:
So it would have to go back just to look through the proper lens.

[00:01:46] Speaker 01:
Absolutely, Your Honor.

[00:01:47] Speaker 01:
So I think for the same reasons that the magistrate judge erred on sort of the top line issue, this court should also clarify that the Prison Litigation Reform Act requires just one fee per filing.

[00:01:59] Speaker 01:
That's the baseline practice in civil litigation.

[00:02:03] Speaker 01:
I don't think anybody here disputes that even non-IFP prisoners can split a filing fee.

[00:02:10] Speaker 01:
Section 1915 by its own terms does not apply to them.

[00:02:14] Speaker 01:
So if you have 10 non-IFP prisoners, each can split $17.50 and pay a $350 filing fee.

[00:02:23] Speaker 03:
Well, but the PLRA, if we look to what it was trying to accomplish, so under 1914 they could just pay one fee, but we have to look at the language regarding 1915, right?

[00:02:45] Speaker 03:
Yes, Your Honor.

[00:02:49] Speaker 03:
What the PLA does is they have to pay it, but they get time to pay it and it comes out of their account for smokes, et cetera.

[00:02:59] Speaker 03:
They get to pay it over time.

[00:03:01] Speaker 01:
That's correct.

[00:03:02] Speaker 01:
Yeah, it comes in installment payments through the procedure.

[00:03:05] Speaker 03:
So if we agreed with you, then a whole bunch of prisoners could come together and just each chip in a little bit and then get into court.

[00:03:18] Speaker 03:
And it seems that that might be inconsistent with the language.

[00:03:23] Speaker 01:
I think a couple of points on that, Your Honor.

[00:03:25] Speaker 01:
So first off, rule 20 is the backstop for that.

[00:03:29] Speaker 01:
sort of incentive argument.

[00:03:31] Speaker 01:
If they're not properly joined together, the court can sever and dismiss, and the people who are properly before the court are responsible for the full filing fee.

[00:03:40] Speaker 01:
The second point is just on the underlying purpose of the Prison Litigation Reform Act.

[00:03:45] Speaker 01:
It was not that individuals should have to pay sort of more than other standards of litigants.

[00:03:50] Speaker 01:
It's that

[00:03:51] Speaker 01:
They should have to pay the same amount as other standard civil litigants.

[00:03:56] Speaker 01:
So it was trying to correct a perceived unfairness.

[00:03:58] Speaker 03:
Well, was part of the act to try to prevent frivolous prisoner lawsuits?

[00:04:03] Speaker 01:
Absolutely, Your Honor.

[00:04:04] Speaker 01:
And there are numerous provisions within the statute that accomplish that.

[00:04:08] Speaker 01:
The Three Strikes provision, for example, the screening provision in 1915E.

[00:04:13] Speaker 01:
So the Prisoner Litigation Reform Act already has sort of a belt and suspenders approach to that, what the sort of

[00:04:21] Speaker 01:
The filing provision was aiming to do was just to make sure that the courts were fairly compensated for the burden of a filing.

[00:04:29] Speaker 01:
I think maybe the simplest way to think about it is it's a filing fee.

[00:04:32] Speaker 01:
It's a fee for the filing.

[00:04:34] Speaker 01:
In joint litigation, there's one filing.

[00:04:36] Speaker 01:
Therefore, there should be one fee.

[00:04:40] Speaker 00:
So the challenge, I think, for you is you've got the text says that the prisoner shall pay the filing fee.

[00:04:48] Speaker 00:
So that's the hardest thing that you have to overcome.

[00:04:51] Speaker 00:
And then there's arguments, the Dictionary Act, et cetera.

[00:04:54] Speaker 00:
Can you kind of walk through what do you think are the best arguments?

[00:04:58] Speaker 00:
I think if we start with the text, it says the prisoner shall have to pay the filing fee, which seems different than

[00:05:04] Speaker 00:
So what are the arguments that overcome that, do you think, in your view?

[00:05:10] Speaker 01:
Sure, Your Honor.

[00:05:11] Speaker 01:
So I guess starting at sort of the highest level, the baseline rule in civil practice is splitting filing fees.

[00:05:18] Speaker 01:
under Jones, the question is, did Congress explicitly depart from that?

[00:05:25] Speaker 00:
So that makes sense.

[00:05:26] Speaker 00:
The only problem is when they write something different, when Congress writes something different, you think maybe they are trying to depart from that baseline practice.

[00:05:33] Speaker 00:
And as Judge Callahan was saying, it's not crazy to think that they might want to do that here in the context of prisoners.

[00:05:39] Speaker 00:
So I understand that argument.

[00:05:41] Speaker 00:
I'm just not sure how much weight that one carries with me, at least, because of the fact that they did write it different, and we can maybe take from that that they meant it different.

[00:05:50] Speaker 00:
So do you have a response to that?

[00:05:52] Speaker 00:
And then what are your other arguments?

[00:05:54] Speaker 01:
Sure, Your Honor.

[00:05:55] Speaker 01:
So to be clear, I think you're absolutely right that Congress intended to depart from the normal rule that IFP litigants need not pay at all.

[00:06:02] Speaker 01:
I think that's what 1915B does.

[00:06:04] Speaker 01:
But it doesn't depart from joint filing fee splitting.

[00:06:08] Speaker 01:
And so to move to the text, it says, if a prisoner brings a civil action or appeal, the prisoner shall be required to pay the full amount of a filing fee.

[00:06:18] Speaker 01:
If we strictly construe that text and we say, if a prisoner brings a civil action or appeal, then this provision wouldn't seem to apply to multi-prisoner litigation at all.

[00:06:30] Speaker 01:
A prisoner did not bring this case.

[00:06:32] Speaker 01:
Multiple prisoners did.

[00:06:34] Speaker 01:
So I don't think that's what Congress intended,

[00:06:37] Speaker 01:
I don't mean to be too cute here, but I think if the statute is fairly read to contemplate multiple prisoner litigation, it must be read in the first half of the sentence to say, if prisoners bring a civil action or appeal, all we're asking is for the second half of the statement, the prisoner, to become prisoners as well, just to carry that plurality to make grammatical sense.

[00:06:59] Speaker 01:
We think that's consistent.

[00:07:01] Speaker 01:
And Judge Graber has a question.

[00:07:02] Speaker 04:
Yeah, I do.

[00:07:03] Speaker 04:
In 1915,

[00:07:06] Speaker 04:
sub B3, it does say that, I'm paraphrasing, the filing fee cannot exceed the fee permitted by statute for the commencement of a civil action.

[00:07:20] Speaker 04:
So if the filing fee for the commencement of a civil action with five plaintiffs who are not prisoners

[00:07:30] Speaker 04:
Is one filing fee, then this seems expressly to have contemplated that that can't happen to have it multiplied.

[00:07:40] Speaker 01:
Absolutely, your honor.

[00:07:42] Speaker 01:
I think that's exactly right.

[00:07:43] Speaker 01:
And I mean, I would just note.

[00:07:45] Speaker 01:
It's the filing fee collected, and it's a passive construction there.

[00:07:50] Speaker 01:
It doesn't say from a prisoner.

[00:07:53] Speaker 00:
Yeah, can I ask you a follow-up about that?

[00:07:55] Speaker 00:
Because I think that's probably your best argument is that the challenge, two challenges with that is it feels a little bit circular or bootstrapping because it's saying you can't pay more of a fee than the fee required by statute.

[00:08:07] Speaker 00:
But I mean, the whole question before us is what is the fee that the two

[00:08:12] Speaker 00:
three or four paragraphs up requires, right?

[00:08:14] Speaker 00:
So I'm not sure how much work that does for me.

[00:08:17] Speaker 00:
The only way it does the work that I think that you're hoping for in the argument is if you're sort of, if you're thinking of the fee as being the 350, right?

[00:08:27] Speaker 00:
As if you kind of, and it is interesting, it says to me, it says, no event shall the filing fee collected, which I understand your argument, exceed the amount of fees, plural.

[00:08:38] Speaker 00:
So what do you think, because in theory, the filing fee collected could be 10 prisoners times 10 fees permitted.

[00:08:49] Speaker 00:
I realize this is sort of angels dancing on it, but some of these arguments feel a little bit like that.

[00:08:52] Speaker 00:
I think in the Sixth Circuit, they put a lot of emphasis on a versus the or something, one of the separate opinions did.

[00:08:58] Speaker 01:
Uh, sure, Your Honor.

[00:08:59] Speaker 01:
Yeah, I think that was the third circuit opinion.

[00:09:02] Speaker 00:
Third, yeah, I'm sorry.

[00:09:04] Speaker 01:
The answer, I think, to that sort of multiple fees language is actually in a footnote in Bruce V. Samuels from the Supreme Court interpreting the same provision.

[00:09:15] Speaker 01:
And the Supreme Court explicitly held that I

[00:09:20] Speaker 01:
Congress was not being perhaps the most deciduous with the use of the singular and the plural in this statute, and then they cite to the Dictionary Act.

[00:09:28] Speaker 03:
So what you're saying 1915b3 would stand for the proposition that you can't exceed the amount permitted in 1914?

[00:09:41] Speaker 03:
And therefore, they'd have to be allowed to split it.

[00:09:45] Speaker 03:
That's correct, Your Honor.

[00:09:46] Speaker 04:
There's also B1, which says that it also says the prisoner, but it says a filing fee.

[00:09:57] Speaker 04:
So that also is ambiguous, I guess.

[00:10:02] Speaker 01:
That's correct, Your Honor.

[00:10:02] Speaker 01:
And I would note that

[00:10:04] Speaker 01:
If ambiguous, I think under Jones v. Bach, tie goes to the runner in a sense.

[00:10:10] Speaker 01:
Congress needs to be explicit to depart from the standard practice.

[00:10:14] Speaker 01:
Unless they're unequivocal, I think what Jones v. Bach says is you read the PLRA to harmonize with standard federal procedure, not to depart from it.

[00:10:25] Speaker 01:
I'd also note just the sort of other principles of statutory interpretation that help us out here.

[00:10:31] Speaker 01:
1915 F2 has identical language to 1915 B.

[00:10:37] Speaker 01:
and actually refers back to it for the cost provision.

[00:10:40] Speaker 01:
So 19.

[00:10:40] Speaker 00:
Can I ask you a question about that?

[00:10:41] Speaker 00:
Because it does seem a lot, I'm trying to figure out how I can articulate this the best, but it seems, it would be really weird to say, okay, the government has $437.12 worth of costs, and they're gonna get a windfall of $437.12 times 10,

[00:11:05] Speaker 00:
uh... prisoners right that it's like it makes more sense to me why costs pretty much that's why i think it has to be true that no eventually cost collected exceed the amount of costs or by the court and and fc there or whatever yeah fc whatever it is uh... it seems like it has to be otherwise you're creating a windfall for a party right uh... the same thing is not necessarily true in the fees kind so i think there's a

[00:11:33] Speaker 00:
not a disconnect between, because the fees are what you pay to the court to file a case, the costs are sort of reimbursement for the opposing party's position.

[00:11:45] Speaker 00:
So it would create a windfall, wouldn't it, if they did anything other than the costs?

[00:11:49] Speaker 01:
I think that's right on the costs, but I think the same principle actually applies for the court.

[00:11:53] Speaker 03:
Well, except for 1914 prescribes a filing fee per action.

[00:11:58] Speaker 03:
1915 specifies per litigant approach.

[00:12:02] Speaker 03:
So why shouldn't we find, I think, as Judge Van Dyke said, why wasn't that distinction purposeful?

[00:12:10] Speaker 01:
I think the statute as a whole is really about proceedings in form of papyrus.

[00:12:14] Speaker 01:
I mean, that's sort of the title of the statute.

[00:12:16] Speaker 01:
So I don't know that it's necessarily per litigant.

[00:12:19] Speaker 01:
And again, to the point that Judge Graber made,

[00:12:23] Speaker 01:
I think the language of a filing fee is important here.

[00:12:27] Speaker 03:
So I don't understand on the ground, I guess, from the standpoint, not being a prison lawyer as it were.

[00:12:33] Speaker 03:
What would be the incentive to file under 1915 over 1914 or vice versa?

[00:12:40] Speaker 03:
Because 1914, it's one cost.

[00:12:43] Speaker 03:
I think we agree on that.

[00:12:45] Speaker 03:
But if we found that, why would a prisoner pick one over the other?

[00:12:53] Speaker 03:
Because you can pay under 1915, you can pay a little bit up front and then go forward?

[00:13:03] Speaker 01:
Yes, Your Honor, and pay in installments.

[00:13:04] Speaker 01:
So it requires an affidavit that you're indigent.

[00:13:07] Speaker 03:
In 1914, you couldn't.

[00:13:09] Speaker 01:
Correct.

[00:13:09] Speaker 03:
You'd have to pay one fee per action.

[00:13:14] Speaker 03:
So they'd have to go out in the prison yard and collect the full fee if they wanted to file.

[00:13:21] Speaker 03:
Do prisoners ever file under 1914?

[00:13:23] Speaker 01:
Absolutely.

[00:13:24] Speaker 01:
So the Ellis case, which the Fourth Circuit just decided, was exactly that case.

[00:13:28] Speaker 01:
It was, I believe, four prisoners who came together, and they split the filing fee, and then they went forward.

[00:13:34] Speaker 00:
So let me make sure I understand.

[00:13:36] Speaker 00:
So if our court was to follow the majority rule that each one has to pay under 514 by prisoner, if our court was to, maybe you don't agree that that's the majority rule.

[00:13:49] Speaker 01:
Well, I think the majority, well,

[00:13:52] Speaker 00:
That would be under 1915 that yeah 1950 I said mystery if our court was to follow the the Third Circuit and the whatever the circuit I don't know six works any other side but just happens in third and the 11th kind of because the 11th kind of They end up with a different place, but they do agree that has to be a per prisoner fee if we were to follow that what will you the upshot of that would be if you're a prisoner and

[00:14:15] Speaker 00:
and you want to do a joint action, you kind of have two choices, right?

[00:14:19] Speaker 00:
We can pay everything upfront, and then we can split it, because we'd all agree that under 14, they could split it.

[00:14:24] Speaker 00:
Or if we want to go on the installment plan, it's going to be per prisoner, if we went that way, right?

[00:14:30] Speaker 00:
So those are the two choices.

[00:14:32] Speaker 00:
Would a prisoner have both the prisoners, they're trying to do a joint action, would have those choices?

[00:14:38] Speaker 01:
If you went that way, yes, but I would note that would create a pretty absurd result that under 1914.

[00:14:47] Speaker 01:
if they were all able to pay upfront, they would pay a total.

[00:14:50] Speaker 00:
Why would that create an absurd result?

[00:14:51] Speaker 00:
Because the goal is to, I mean, it seems the whole reason that Congress must have said prisoners are still going to have to pay, even if they're informer-properties, is that they, is a little bit of a deterrence effect for frivolous suits.

[00:15:04] Speaker 00:
So you're saying, well, you can come in and get the benefit that 15 gives you of paying on the installment plan, but if you do that as a joint action, we're not going to reduce it down to,

[00:15:16] Speaker 03:
You've got to have skin in the game, so it's not a frivolous lawsuit.

[00:15:21] Speaker 03:
Sure, Your Honor.

[00:15:22] Speaker 04:
I guess my question, maybe this belongs to your opposing counsel, which is if a lawsuit is frivolous, it's no more frivolous if you have three people as plaintiffs than one.

[00:15:38] Speaker 04:
But I guess the deterrent effect is different.

[00:15:43] Speaker 01:
Sure, Your Honor.

[00:15:43] Speaker 01:
There's a lot packed in there, so I want to pull apart a few points.

[00:15:46] Speaker 03:
I think the first- Well, you're in overtime already.

[00:15:49] Speaker 01:
Yeah.

[00:15:49] Speaker 03:
Okay.

[00:15:49] Speaker 03:
And we kind of focused on that.

[00:15:51] Speaker 03:
Let me find out.

[00:15:53] Speaker 03:
Now we're into, does the court have any questions?

[00:15:56] Speaker 03:
Do either of you have any questions?

[00:15:58] Speaker 00:
I don't have any more for now.

[00:16:01] Speaker 03:
All right.

[00:16:01] Speaker 04:
So I'll give you two minutes to- I have a follow-up question on the issue of deterrence, which is the

[00:16:09] Speaker 04:
Is the deterrence for a lawsuit or is the deterrence for an individual?

[00:16:15] Speaker 04:
I guess that's the question we have to answer, but I'd like your thoughts on that.

[00:16:24] Speaker 01:
Sure, Your Honor.

[00:16:25] Speaker 01:
I think a couple of points.

[00:16:28] Speaker 01:
One is,

[00:16:30] Speaker 01:
This would be creating a scenario where indigent individuals would have to have more skin in the game than non-indigent individuals if you were to adopt the Third Circuit's ruling.

[00:16:41] Speaker 01:
There would be a 20 litigant hypothetical where they're all properly joined under rule 20.

[00:16:45] Speaker 01:
they would have to pay $7,000 for the same lawsuit that is of the same.

[00:16:50] Speaker 00:
But what I was asking before is if they want to pay on the installment plan.

[00:16:54] Speaker 00:
But if they're willing to pay up front and then go under 14, if they have 20, do my math, but it's $17.50, right?

[00:17:02] Speaker 00:
It's all they got to scrape up per person.

[00:17:04] Speaker 01:
Sure, Your Honor.

[00:17:05] Speaker 01:
I guess I would say you're speaking in terms of,

[00:17:11] Speaker 01:
incentivizing or disincentivizing frivolous lawsuits.

[00:17:16] Speaker 01:
I think another way to think about this is the PLRA is aimed at efficiency.

[00:17:21] Speaker 01:
And if you're not following the normal rules of civil practice, you're not incentivizing joint actions.

[00:17:27] Speaker 01:
League to Save Lake Tahoe, Unite My Workers to V. Gibbs, all of these put a presumption in favor of Jointer because it's more efficient for the court.

[00:17:34] Speaker 01:
So the inverse way of thinking about it is by adopting the split filing fee rule,

[00:17:38] Speaker 01:
You're incentivizing people to join properly joined actions.

[00:17:42] Speaker 00:
Well, let me and I know we're over.

[00:17:44] Speaker 00:
It's okay.

[00:17:45] Speaker 00:
But let me make sure I get your thoughts on because I you know my thinking on that was if you go with the majority rule what I'm calling the majority rule.

[00:17:54] Speaker 00:
You will still have cases that involve jointer, but they will only be cases where the jointer is actually really kind of important to the litigation.

[00:18:04] Speaker 00:
Because if we were to go with the minority rule, you can go around the court, hey, I'm filing a lawsuit.

[00:18:10] Speaker 00:
It doesn't cost you anything to join my lawsuit.

[00:18:13] Speaker 00:
And in theory, you're like,

[00:18:14] Speaker 00:
I'd be like, yeah, I'm in.

[00:18:16] Speaker 00:
But now, since you have to have skin in the game, you've got to think about that.

[00:18:20] Speaker 00:
Like, you either have to pay a portion of it up front, or you've got to pay your 350 over time.

[00:18:25] Speaker 00:
So why does it?

[00:18:26] Speaker 00:
So I do think there is more of a difference than you're saying there that could make sense under what Congress did here.

[00:18:32] Speaker 01:
Sure, Your Honor.

[00:18:33] Speaker 01:
I think the Sixth Circuit's actual practice on how this works maybe clarifies that a bit.

[00:18:37] Speaker 01:
If you're trying to just recruit people who don't belong in the lawsuit just to get your overall costs down,

[00:18:43] Speaker 01:
you're severed under Rule 20, and then your costs remain the same.

[00:18:48] Speaker 01:
And in fact, you might obtain a strike.

[00:18:50] Speaker 01:
So there are real risks to proceeding jointly that would dissuade people from just joining just to help out somebody else.

[00:19:00] Speaker 01:
OK.

[00:19:00] Speaker 03:
If I were reading faces, you had kind of a shock look when I called you on your time.

[00:19:04] Speaker 03:
but you're now three and a half minutes over your time.

[00:19:07] Speaker 03:
So we're not really taking your time away.

[00:19:09] Speaker 03:
And I'll give you two minutes for rebuttal.

[00:19:11] Speaker 03:
Okay.

[00:19:11] Speaker 03:
Thank you.

[00:19:12] Speaker 03:
I just, but you look surprised.

[00:19:17] Speaker 03:
Okay.

[00:19:18] Speaker 03:
We'll hear from the high desert.

[00:19:22] Speaker 03:
Good morning.

[00:19:23] Speaker 02:
Good morning, your honor.

[00:19:25] Speaker 02:
And may it please the court.

[00:19:26] Speaker 02:
My name is Martha Allen Bach and I represent defendant Silva in this.

[00:19:29] Speaker 02:
Can you keep your voice up?

[00:19:33] Speaker 02:
Yes, your honor.

[00:19:33] Speaker 02:
Thank you.

[00:19:34] Speaker 03:
Thank you.

[00:19:36] Speaker 03:
OK, so I think you know we're sort of centered on this.

[00:19:39] Speaker 03:
So you don't really need to talk about the first issue unless you want to say you don't agree with going with the main circuits on the Rule 20 rule.

[00:19:52] Speaker 03:
Are you still where you were?

[00:19:54] Speaker 02:
Your Honor, we do agree that Rule 20 doesn't necessarily preclude Joinder of prisoner plaintiffs in one action.

[00:20:02] Speaker 02:
This Court should affirm, however, in this case on the basis that the District Court properly denied Joinder because of concerns regarding communication delays among the prisoners.

[00:20:14] Speaker 03:
Well, but the District Court basically started with, you know, frequently

[00:20:18] Speaker 03:
we remand things if the district court got the law wrong in the first place.

[00:20:22] Speaker 03:
And I think that if we were to hold that rule 20 is not incompatible with 1915, the district court did not look at it through that lens.

[00:20:38] Speaker 02:
That's correct, your honor.

[00:20:39] Speaker 02:
If this court were to remand solely so the district court could do that analysis in such a way that it would consider.

[00:20:47] Speaker 03:
Wouldn't we have to if the district court got the law wrong?

[00:20:50] Speaker 02:
Not necessarily, your honor.

[00:20:51] Speaker 02:
This court can affirm on any basis supported by the record.

[00:20:54] Speaker 02:
And if this court were to find the district court relied on those concerns regarding joint prisoner litigation in this case to deny Joinder, then it could affirm on that basis.

[00:21:03] Speaker 00:
You can rely on really sort of abstract concerns.

[00:21:05] Speaker 00:
And you're supposed to be rooted

[00:21:07] Speaker 00:
specific fact pattern of this case.

[00:21:09] Speaker 00:
And it's just not super clear to me that, I don't think any of that was explicit at least.

[00:21:13] Speaker 00:
So I think you're about to say that if we were to send, if we were to say, Real 20 could apply, you didn't root it enough for us on the specific fact pattern, you know, to explain the law and you can reapply it.

[00:21:26] Speaker 00:
In other words, not foreclose the possibility that the district court could exercise this discretion, but send it back.

[00:21:32] Speaker 00:
That would be, you'd be okay with that?

[00:21:35] Speaker 00:
I mean, you prefer to us to just, you just want to win.

[00:21:37] Speaker 03:
You just never want to come back and you want this to be over.

[00:21:40] Speaker 02:
I would be all right with that, Your Honor, with one slight concern that I'd like to express is that this court should not adopt a rule that would constrain a district court's discretion to consider those perhaps general circumstances of incarceration.

[00:21:55] Speaker 02:
And I'll, if I could make two brief points about that, first of all,

[00:22:00] Speaker 04:
It's not an ad... Excuse me, counsel, but Rule 20 doesn't require Joinder if it's not appropriate.

[00:22:07] Speaker 04:
So the fact that Rule 20 is applicable, I don't think would preclude the exercise of discretion on an individual lawsuit.

[00:22:19] Speaker 02:
That's correct, Your Honor.

[00:22:20] Speaker 02:
My concern is that plaintiff's proposed rule on that issue would constrain a district court's ability to consider those concerns, and prisoners and judges in the Eastern.

[00:22:31] Speaker 03:
But the district court didn't consider it because he said it wasn't applicable.

[00:22:35] Speaker 03:
If we go along with the majority of the circuits, all it goes back and say, this is what the law is, look at the facts in this case, and decide whether Joinder is appropriate or not.

[00:22:46] Speaker 02:
Yes, sir.

[00:22:46] Speaker 02:
And I would say that the district court did at excerpts of record 12 and 13 mentioned these communication delays and I should also mention that some of those issues that the district court brought up did actually occur later in this case.

[00:22:59] Speaker 02:
There were improper filings where one plaintiff tried to file on behalf of another without their signature or permission.

[00:23:06] Speaker 02:
There was a statement made by one of the plaintiffs that he was responsible for all of the filings in this case, and they were transferred.

[00:23:14] Speaker 03:
So you want us to do all the fact finding and just wrap it all up with a nice bow for you right here, but we're probably not going to do that.

[00:23:21] Speaker 03:
Yes, Your Honor.

[00:23:23] Speaker 03:
Maybe you want to spend your time on the costs.

[00:23:26] Speaker 02:
Thank you, Your Honor.

[00:23:26] Speaker 02:
My larger point is about the district court's discretion, but I'll move on to the fees issue.

[00:23:32] Speaker 02:
When enacting the Prison Litigation Reform Act, Congress determined that prisoners proceeding IFP should be treated differently than

[00:23:41] Speaker 02:
non-prisoners and inmates who are not proceeding IFP.

[00:23:46] Speaker 02:
So section 1915B1, as your honor stated, states that if a prisoner brings an action or appeal, the prisoner shall be required to pay the full amount of a filing fee, requiring each prisoner to pay that full amount.

[00:23:59] Speaker 00:
So you heard our argument already.

[00:24:01] Speaker 00:
So just to make sure we don't take you too long over, what about, again, I think their best argument is probably 1915B1.

[00:24:11] Speaker 00:
B3, in no event shall the filing fee collected exceed the amount of fees permitted by statute for the commencement of civil action or the appeal of a civil action or a criminal judgment.

[00:24:20] Speaker 00:
So what about that argument that you're capped at the fee, the $350?

[00:24:26] Speaker 00:
Yes, Your Honor.

[00:24:28] Speaker 02:
Section B3 doesn't speak to whether or not the filing fee collected is per case or per litigant.

[00:24:35] Speaker 02:
Whereas B1, and especially when read in the context of the PLRA,

[00:24:40] Speaker 02:
which was meant to require indigent inmates to think first before they file.

[00:24:46] Speaker 03:
Well, doesn't B1 have the words each prisoner?

[00:24:51] Speaker 02:
It says a prisoner and then the prisoner.

[00:24:54] Speaker 02:
And under the Dictionary Act, if context indicates that indefinite article A should not be treated in the plural, then it needs to be singular in this case.

[00:25:04] Speaker 03:
A person should not be treated as multiple persons.

[00:25:08] Speaker 02:
No, and that's not to say that this precludes multiple inmates from joining together, but it does mean that whenever any inmate, a inmate, files an action, they have to be responsible for the full amount of the filing fee.

[00:25:21] Speaker 02:
Judge Graber has a question.

[00:25:22] Speaker 04:
Would you agree that the statute is not a model of clarity and that it doesn't explicitly answer this question?

[00:25:31] Speaker 02:
It is not a model of clarity.

[00:25:33] Speaker 02:
And in that case, I think this court should look to the purpose of the PLRA and to the other subsections.

[00:25:38] Speaker 04:
What about the rule that if it is ambiguous, we are to default to the ordinary rules of civil procedure?

[00:25:47] Speaker 04:
And what your reading does is to make

[00:25:52] Speaker 04:
indigent prisoners pay more than everybody else pay more than prisoners who have a little bit of money to pay more than ordinary civil litigants and the ordinary I mean so looking at the purpose that seems unlikely that that's the purpose but regardless of the question of purpose

[00:26:14] Speaker 04:
isn't the rule that we default to the usual way of proceeding if a statute is unclear?

[00:26:22] Speaker 02:
The statute is not so unclear that this court needs to default to a different rule.

[00:26:29] Speaker 04:
You said it was unclear, but we should default to the purpose, which is different.

[00:26:36] Speaker 02:
Parts of the statute are unclear.

[00:26:38] Speaker 02:
It's not entirely clear.

[00:26:40] Speaker 02:
For example, in Judge Jordan's concurrence in Hagen, Judge Jordan expressed those same concerns and yet still looked at the other sections of the Prisoner Litigation Reform Act, subsection G, which is prisoner-specific, which requires that no prisoner who's previously brought three actions or appeals

[00:27:04] Speaker 02:
The IFP, who have had those actions dismissed as frivolous, malicious, or for failure to state a claim, shall be able to proceed IFP.

[00:27:12] Speaker 02:
Subsections A... Right.

[00:27:13] Speaker 04:
If such a person were included, they would be severed.

[00:27:16] Speaker 04:
They would be unable to participate.

[00:27:18] Speaker 04:
But I don't understand how that deals with the question of the people who aren't barred

[00:27:25] Speaker 04:
What they pay when they join together.

[00:27:27] Speaker 02:
It's relevant, your honor, because it shows that the statute as a whole in this context.

[00:27:32] Speaker 02:
When we're talking about the filing fee takes a prisoner specific approach subsections a one and two also require any

[00:27:40] Speaker 02:
indigent prisoner who is seeking IFP status to submit that copy of the trust account statement.

[00:27:46] Speaker 04:
Again, that is a question of whether they're indigent and whether they fall under this, and anybody who doesn't qualify would be severed.

[00:27:55] Speaker 04:
But it seems to me that that doesn't say it all.

[00:27:57] Speaker 04:
Once you've gotten rid of the people who aren't eligible and you have five left, what it is this statute requires.

[00:28:05] Speaker 04:
To me, it's unclear.

[00:28:08] Speaker 02:
The issue that it speaks to, Your Honor, is it shows that just as any prisoner who is proceeding IFP, who seeks to proceed IFP, has to submit a trust account statement.

[00:28:19] Speaker 03:
So what is the purpose of the PLRA from your perspective?

[00:28:23] Speaker 02:
The primary purpose is to deter frivolous lawsuits and encourage indigent inmates to think and consider carefully before filing a particular case.

[00:28:35] Speaker 02:
So to that point with the hypothetical raised about multiple prisoner plaintiffs incurring different fees and costs if they filed the case and paid the full filing fee upfront versus

[00:28:49] Speaker 02:
attempting to proceed IFP, if you pay the filing fee upfront, that would require that those inmates consider carefully that case, pay that $17.50 or whatever amount was appropriate, and then proceed as non-IFP prisoner plaintiffs together in one action.

[00:29:11] Speaker 02:
So that difference, when you think about it that way,

[00:29:13] Speaker 02:
it does make sense in the context of the statute.

[00:29:16] Speaker 02:
And Rule 20 is not necessarily a backstop here.

[00:29:19] Speaker 02:
There's no indication in the PLRA that it was meant to be a backstop.

[00:29:23] Speaker 02:
The purpose of the PLRA and the only reading that gives full effect to those two provisions is that Congress meant to depart from the ordinary proposition that co-plaintiffs are assessed a shared

[00:29:36] Speaker 02:
fee, and it expressly indicated that intent to make each inmate responsible for the full filing fee.

[00:29:42] Speaker 03:
Well, I think you're both citing Jones to suit your purpose.

[00:29:47] Speaker 03:
When Congress meant to depart from the usual procedure requirements, it did so expressly.

[00:29:53] Speaker 03:
Your friend on the other side says it's not express.

[00:29:56] Speaker 03:
You're saying it is express?

[00:29:59] Speaker 02:
The full filing fee language is clear, yes.

[00:30:01] Speaker 02:
It could be clearer, which is why I agree with the proposition that it's not a model of clarity, because it doesn't specifically speak to ... It doesn't say ... There's no provision specifically applying a multi-planet application.

[00:30:14] Speaker 03:
I think when you were talking to Judge Graber, then you mentioned going to the purpose, but are you departing from ... You're saying they did it expressly.

[00:30:27] Speaker 03:
then are you saying we first look to the other parts of the statute before we look to the purpose?

[00:30:34] Speaker 03:
Can we gain clarity from looking at the other parts of the statute?

[00:30:40] Speaker 02:
Yes, Your Honor.

[00:30:41] Speaker 02:
I think you can because to the extent that those other sections are also prisoner specific and that they speak to any prisoner, whether or not they're bringing a joint litigation needs to do.

[00:30:53] Speaker 02:
when they proceed IFP.

[00:30:54] Speaker 02:
I don't take the plaintiffs to argue that more than one prisoner bringing an action together would be excused.

[00:31:01] Speaker 03:
Just so I understand your position, is it that it could be clearer, but it's clear enough to decide it on the language of the statute?

[00:31:10] Speaker 03:
Yes, Your Honor.

[00:31:12] Speaker 02:
Similar to what Judge Jordan said in his partial concurrence.

[00:31:16] Speaker 00:
So, you know, we've talked about some of what I think are the strongest arguments for the position you don't support.

[00:31:22] Speaker 00:
One argument that at least superficially felt

[00:31:24] Speaker 00:
strong to me, but I'm not sure I'm there now.

[00:31:27] Speaker 00:
So Mr. Mills, I want you to listen to this, too, because I want to hear your view on this, too, when you get back up.

[00:31:31] Speaker 00:
But one of the arguments is you're treating these prisoners worse, because you've got 14.

[00:31:38] Speaker 00:
If I bring a lawsuit, if the three, Judge Graber and Judge Kellan, and I all bring a lawsuit together and join together, we're only going to pay $350, but the prisoners are going to have to pay per each.

[00:31:49] Speaker 00:
It's true that like prisoners, if they just went under 14, they could, they're not being treated worse in a sense that they could always go under 14, right?

[00:31:55] Speaker 00:
It's just they get this benefit where they can, that's what I make sure I'm understanding, is they get this benefit where they can pay on time, which is something I don't get, I don't think if I bring a lawsuit, and they can pay under installments.

[00:32:05] Speaker 00:
So in theory, you could read 15 as saying, yeah, we'll give you this benefit that you can pay on installments, but if you bring a jointer, we're not gonna let you chop the case up in the tiny, chop the fee up in the tiny little pieces, am I?

[00:32:16] Speaker 00:
Maybe my question wasn't super clear.

[00:32:18] Speaker 00:
But I'm not sure how prisoners, after I thought about it, are really getting treated worse, because they always have the option to go under the non-IFP provision, 14.

[00:32:28] Speaker 04:
And then they're just- If they're not indigent, right?

[00:32:31] Speaker 04:
I mean, under 14, the person is not indigent.

[00:32:38] Speaker 04:
Is that right?

[00:32:40] Speaker 00:
Right.

[00:32:40] Speaker 00:
Or an indigent person could.

[00:32:42] Speaker 00:
Let's say they actually qualified as being indigent, but they

[00:32:46] Speaker 00:
But they still could scrape up $350.

[00:32:49] Speaker 00:
They can always go under 14 if they want to.

[00:32:52] Speaker 00:
And so if there was 10 indigent people and they wanted to bring a joint action, they could go under 14 and split the fee up 10 ways.

[00:33:01] Speaker 00:
Would you agree to that?

[00:33:02] Speaker 00:
If they pay up front?

[00:33:04] Speaker 02:
Indigent inmates or not?

[00:33:05] Speaker 00:
Yeah, indigent inmates.

[00:33:08] Speaker 00:
They're not saying I'm indigent.

[00:33:10] Speaker 00:
Let's just say they are.

[00:33:10] Speaker 02:
I wouldn't say necessarily go under 1914, because that's just the statute that prescribes the fee.

[00:33:17] Speaker 02:
But yes, 1915 is specific to indigent individuals.

[00:33:21] Speaker 00:
Who are trying to pay over time.

[00:33:23] Speaker 02:
Who are trying to seek IFP status.

[00:33:26] Speaker 00:
Which gives them the ability to pay over time.

[00:33:28] Speaker 00:
Is that right?

[00:33:28] Speaker 00:
Yes.

[00:33:29] Speaker 00:
And so my point is that if they're willing to pay up front, like everybody else does,

[00:33:34] Speaker 00:
they're not hurt, right?

[00:33:37] Speaker 00:
Because they can still bring in, they're no differently situated than 10 non-IFP people who want to bring a lawsuit and can split the fee up 10 ways.

[00:33:46] Speaker 00:
10 IFP people can also split the fee up 10 ways.

[00:33:50] Speaker 00:
The only way they can't split it up is if they want to take advantage of the special circumstance that 15 gives them to pay over time, right?

[00:33:57] Speaker 00:
That's what I'm trying to understand is that

[00:34:00] Speaker 00:
It's not super clear to me that they're worse off.

[00:34:01] Speaker 00:
It's just that we're giving you this benefit that you can pay over time.

[00:34:04] Speaker 00:
But we're going to condition that benefit on the ability to, on saying you can't chop it up.

[00:34:10] Speaker 00:
Because if you pay over time and you chop it up, then your cost per month becomes a pack of cigarettes.

[00:34:18] Speaker 02:
That's the idea of the PLRA is that

[00:34:21] Speaker 02:
It's geared toward indigent inmates, and that indigent inmates in particular, unlike non-indigent inmates who would need to pay that filing fee, don't have that incentive before they bring suit.

[00:34:31] Speaker 03:
Well, about the purpose of the PRLA, Senator Bob Dole said the purpose of the PRLA was to prevent prisoners from getting preferential treatment over other litigants.

[00:34:41] Speaker 03:
That's what he said.

[00:34:42] Speaker 03:
If you want to talk about what you're saying, the purpose is not to have frivolous lawsuits.

[00:34:46] Speaker 03:
But I think what Judge Van Dyke is exploring with you, if you can be nimble about this, is being treated differently doesn't necessarily mean that you're being treated more favorably or less favorably.

[00:35:03] Speaker 00:
She said it better than I do as usual.

[00:35:06] Speaker 02:
That's true.

[00:35:11] Speaker 00:
Let me see if I can say it in a more simple way.

[00:35:14] Speaker 00:
You have a route, which is if you want to bring a joint lawsuit, you can split the fee up.

[00:35:19] Speaker 00:
Everybody has that option to them.

[00:35:21] Speaker 00:
Then there's another route you can go if you're indigent, and you can show the court you're indigent.

[00:35:25] Speaker 00:
But you don't have to go that route.

[00:35:26] Speaker 00:
You can always go.

[00:35:28] Speaker 00:
It's hard to think that somebody's being treated worse when they always have the same route that everybody else has.

[00:35:34] Speaker 00:
They just have this other route that they may wish that other route was more favorable than it is.

[00:35:39] Speaker 00:
But indigent people have two different options.

[00:35:42] Speaker 00:
Non-indigent prisoners that wanted to bring a joint action only have one option.

[00:35:45] Speaker 03:
Think before you say something.

[00:35:47] Speaker 03:
Listen to what he said.

[00:35:48] Speaker 03:
It seems like you're trying to snatch defeat from the jaws of victory here.

[00:35:52] Speaker 03:
He gave you a way to analyze it.

[00:35:56] Speaker 03:
And then you keep going, but.

[00:35:58] Speaker 02:
Yes, Your Honor.

[00:35:59] Speaker 02:
I agree that being treated differently is not necessarily being treated worse.

[00:36:07] Speaker 00:
OK.

[00:36:08] Speaker 03:
Okay, any further questions?

[00:36:10] Speaker 00:
I'm curious to hear Mr. Mills' answer on this.

[00:36:13] Speaker 03:
Okay.

[00:36:14] Speaker 03:
All right.

[00:36:15] Speaker 02:
Thank you, Your Honor.

[00:36:16] Speaker 02:
You're over time.

[00:36:17] Speaker 03:
Thank you.

[00:36:17] Speaker 03:
And so that'll complete this.

[00:36:19] Speaker 03:
Thank you.

[00:36:20] Speaker 03:
And I gave two minutes to the appellant for... Did you understand my not very well-articulated question, Mr. Mills?

[00:36:29] Speaker 01:
I thought it was well-articulated.

[00:36:30] Speaker 01:
I think so, Your Honor.

[00:36:32] Speaker 01:
That's a good kiss-up to the judge.

[00:36:33] Speaker 00:
Yeah, that's a good... He wins.

[00:36:35] Speaker 01:
But just go for it, yeah.

[00:36:38] Speaker 01:
I think maybe the disjuncture here is it's not a question of willing.

[00:36:41] Speaker 01:
It's a question of able.

[00:36:42] Speaker 01:
If you're indigent, by the very definition, you're not able to pay.

[00:36:46] Speaker 01:
You have nothing.

[00:36:47] Speaker 01:
And at prison wages, which are remarkably low.

[00:36:49] Speaker 00:
Can I push back on a little bit?

[00:36:51] Speaker 00:
Sure.

[00:36:51] Speaker 00:
Usually you would think that means you're not able to pay $350.

[00:36:52] Speaker 00:
But if you can get 350 indigent people together and join, and if you go with the minority rule, they're indigent, but they can pay a buck.

[00:37:01] Speaker 00:
They can pay one.

[00:37:02] Speaker 00:
They can pay a buck.

[00:37:03] Speaker 00:
So you see what I'm saying?

[00:37:04] Speaker 00:
The fact that they're not able to pay the $350,

[00:37:07] Speaker 00:
But to my other point, are they really being treated worse?

[00:37:11] Speaker 00:
Because they always have the option.

[00:37:13] Speaker 00:
How can they be treated worse if they always have the option that everybody else has?

[00:37:17] Speaker 00:
They might not be treated any better.

[00:37:18] Speaker 03:
Well, 1915 would not apply to us.

[00:37:23] Speaker 03:
We could not file under that.

[00:37:25] Speaker 03:
So we're talking prisoners under that, right?

[00:37:28] Speaker 01:
I mean, in standard practice, non-prisoners can file under 1915A as well and pay nothing.

[00:37:35] Speaker 01:
OK.

[00:37:36] Speaker 01:
nor indigent people who are not incarcerated pay nothing.

[00:37:39] Speaker 01:
It's just that indigent people who are incarcerated, and it's not everyday, a prisoner's rights lawyer quotes Bob Dole, but he said they want the fees, it was designed to correct the perceived unfairness of indigent prisoners not being required to pay the fees that normally accompany the filing of a lawsuit.

[00:37:59] Speaker 01:
That's what Bob Dole said when he was introducing the PLRA.

[00:38:02] Speaker 03:
So if you say the language is not clear.

[00:38:06] Speaker 03:
Okay, then you just say, because it's not clear you automatically win, that tie goes to the runner, or what is your approach on that?

[00:38:17] Speaker 03:
Do we look to the purpose?

[00:38:19] Speaker 03:
Do we look to the other parts of the statute, or what's your approach on that so that you can continue on your victorious path?

[00:38:30] Speaker 01:
Sure, Your Honor.

[00:38:30] Speaker 01:
I see I'm into overtime, but may I answer?

[00:38:32] Speaker 03:
Yes, go ahead.

[00:38:34] Speaker 01:
Sure, I think it's all of the above.

[00:38:36] Speaker 01:
Yes, it's not explicit.

[00:38:38] Speaker 01:
It could say each or every in the statute, but it doesn't.

[00:38:42] Speaker 01:
So under that, under Jones, that works in our favor.

[00:38:46] Speaker 01:
The next line down is, okay, it does say a prisoner, how do you get around that?

[00:38:51] Speaker 01:
The Dictionary Act provides the exact solution.

[00:38:54] Speaker 01:
Now, the next line of defense is, well, the Dictionary Act doesn't apply if the context indicates otherwise, but here the context indicates exactly in our favor.

[00:39:03] Speaker 01:
It aligns both with the purpose of the PLRA as a whole.

[00:39:06] Speaker 01:
What is the purpose of the PLRA from your perspective?

[00:39:10] Speaker 01:
Sure.

[00:39:11] Speaker 01:
I think it's to deter frivolous lawsuits, but it's not to deter lawsuits.

[00:39:15] Speaker 01:
And I think, as you'll see from the allegations here, this was not a frivolous lawsuit.

[00:39:19] Speaker 01:
This was a meritorious lawsuit.

[00:39:20] Speaker 01:
So I think it's not to deter lawsuits in general.

[00:39:25] Speaker 01:
It's just to prevent the courts from being overburdened.

[00:39:29] Speaker 01:
And it's also to increase efficiency.

[00:39:31] Speaker 01:
And I would say, jointer is more efficient than non-joinder.

[00:39:35] Speaker 01:
This fee filing provision would incentivize jointer when people are properly joined.

[00:39:39] Speaker 01:
That will ultimately reduce the burdens on the court.

[00:39:42] Speaker 03:
So let me see if my colleagues want to ask you anything additional since we've gone over.

[00:39:46] Speaker 03:
Judge Graber?

[00:39:50] Speaker 01:
Thank you.

[00:39:50] Speaker 03:
So I think that will conclude argument.

[00:39:52] Speaker 03:
Thank you both for your argument in this matter.

[00:39:55] Speaker 03:
This matter will stand submitted, and this court is in recess.

[00:39:59] Speaker 03:
until 9 AM tomorrow.