In Re Grant

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2010 Decided February 22, 2011

No. 08-5440

IN RE: ROGEL GRANT,
PETITIONER

On Motion for Leave to Proceed
In Forma Pauperis

Petition for Writ of Mandamus
(No. 1:08cv0150)

Brian S. Scarbrough, appointed by the court, argued the
cause as amicus curiae in support of petitioner. With him on the
briefs was David W. DeBruin.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the
cause for respondent. With him on the brief were Ronald C.
Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

Before: GARLAND, Circuit Judge, and WILLIAMS and
RANDOLPH, Senior Circuit Judges.

Opinion of the Court filed by Senior Circuit Judge
RANDOLPH.
 2

RANDOLPH, Senior Circuit Judge: A jury in the Eastern
District of Pennsylvania convicted Rogel Grant of two counts of
distributing crack cocaine and one count of possession of crack
cocaine with intent to distribute. The district court sentenced
Grant to life imprisonment. He is currently incarcerated at the
United States Penitentiary in Bruceton Mills, West Virginia.

After his conviction, Grant brought a civil complaint in the
U.S. District Court for the District of Columbia against the
Attorney General of the United States, the U.S. Attorney for the
Eastern District of Pennsylvania and an Assistant U.S. Attorney
in the Eastern District alleging a conspiracy to deprive him of
his constitutional rights under the Fifth, Sixth and Fourteenth
Amendments during the prosecution of his criminal case. On its
own motion, the district court ordered Grant’s civil action
transferred to the U.S. District Court for the Eastern District of
Pennsylvania.

Grant filed a notice of appeal of the transfer order with the
district court pro se. The district court transmitted the notice to
this court. Because transfer orders are not appealable, see Ukiah
Adventist Hosp. v. FTC, 981 F.2d 543, 546 (D.C. Cir. 1992), we
ordered that Grant’s notice of appeal be construed as a petition
for writ of mandamus. The order also directed Grant to pay the
$450 docketing fee or to file a motion for leave to proceed in
forma pauperis pursuant to 28 U.S.C. § 1915(a). Grant filed the
motion. Our court referred it to the merits panel, appointed
counsel to serve as amicus curiae for him and instructed the
parties to address the question whether the filing-fee require-
ments of the Prison Litigation Reform Act (PLRA), 28 U.S.C.
§ 1915(b), apply to petitions for writs of mandamus.

Under 28 U.S.C. § 1915(a), “any court of the United States
may authorize the commencement, prosecution or defense of
any suit, action or proceeding, civil or criminal, or appeal
 3

therein, without prepayment of fees or security therefor” by a
person who demonstrates through an affidavit his inability to
pay such fees or give security therefor. 28 U.S.C. § 1915(a)(1).1

1
28 U.S.C. § 1915 provides in relevant part:

(a)(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 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 6-month 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.

(b)(1) Notwithstanding subsection (a), if a prisoner
brings a civil action or files an appeal in forma
pauperis, the prisoner shall be required to pay the full
amount of a filing fee. The court shall assess and,
 4

Proceedings authorized under this and similar provisions are
said to be in forma pauperis. The origins of the statute reach
back at least as far as 1892, Law of July 20, 1892, ch. 209, 27
Stat. 252, and the origins of the practice further still, see 1

when funds exist, collect, as a partial payment of any
court fees required by law, an initial partial filing fee
of 20 percent of the greater of—

(A) the average monthly deposits to the
prisoner’s account; or

(B) the average monthly balance in the prisoner’s
account for the 6-month period immediately
preceding the filing of the complaint or notice of
appeal.

(2) After payment of the initial partial filing fee, the
prisoner shall be required to make monthly payments
of 20 percent of the preceding month’s income
credited to the prisoner’s account. The agency
having custody of the prisoner shall forward
payments from the prisoner’s account to the clerk of
the court each time the amount in the account exceeds
$10 until the filing fees are paid.

(3) In no event shall the filing fee collected exceed
the amount of fees permitted by statute for the
commencement of a civil action or an appeal of a
civil action or criminal judgment.

(4) In no event shall a prisoner be prohibited from
bringing a civil action or appealing a civil or criminal
judgment for the reason that the prisoner has no
assets and no means by which to pay the initial partial
filing fee.
 5

ROGER FOSTER, A TREATISE ON FEDERAL PRACTICE IN CIVIL
CAUSES § 200 (1892).

In 1996, in the wake of a nearly six-fold increase in due
process and cruel and unusual punishment prisoner complaints
from 1975 to 1994, Congress amended § 1915 to impose
additional obligations on prisoners seeking to proceed in forma
pauperis. Subsection (b) now states that “if a prisoner brings a
civil action or files an appeal in forma pauperis, the prisoner
shall be required to pay the full amount of a filing fee.” 28
U.S.C. § 1915(b)(1). The subsection creates a payment schedule
including prepayment of a portion of the fee, but provides that
“[i]n no event shall a prisoner be prohibited from bringing a
civil action or appealing a civil or criminal judgment for the
reason that the prisoner has no assets and no means by which to
pay the initial partial filing fee.” Id. § 1915(b)(2)–(4).

The courts of appeals are divided about whether (and how)
the requirements of subsection (b) apply to petitions for writs of
mandamus.2 The closest this court has come to addressing the
question in a published opinion was In re Smith, where we held
that the filing fee requirements apply to “a petition for a writ of

2
Compare In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997)
(requirements apply to mandamus petitions only when the underlying
action is civil), Martin v. United States, 96 F.3d 853, 854-55 (7th Cir.
1996) (same), In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997)
(requirements apply at least to petitions arising from “ongoing civil
rights lawsuit[s]”), and Green v. Nottingham, 90 F.3d 415, 418 (10th
Cir. 1996) (requirements apply to all mandamus petitions), with In re
Nagy, 89 F.3d 115, 117 n.2 (2d Cir. 1996) (requirements only apply
to petitions that are simply “alternative device[s]” for obtaining the
relief sought in civil actions), and Madden v. Myers, 102 F.3d 74, 78
(3d Cir. 1996) (requirements do not apply to “bona fide mandamus
petitions”).
 6

prohibition that . . . includes underlying claims that are civil in
nature.” 114 F.3d 1247, 1250 (D.C. Cir. 1997).3

Now that the question is directly before us, we hold that the
filing-fee requirements of the PLRA apply to a petition for a
writ of mandamus filed in connection with a civil proceeding in
the district court. We agree with the Seventh Circuit that a
mandamus petition in such a case “is realistically a form of
interlocutory appeal.” Martin, 96 F.3d at 854. Grant’s petition
began as a notice of appeal of the transfer order in his underly-
ing civil action. It was only by order of this court that it was
restyled a petition for a writ of mandamus. Our jurisdiction over
an action in the district court is “exclusively appellate.” Roche
v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943). And our
authority to issue writs of mandamus in connection with such
actions is restricted to those that are “in aid of [our] appellate
jurisdiction.” Cheney v. U.S. District Court, 542 U.S. 367, 380
(2004) (quoting Roche, 319 U.S. at 26).

Even if we were to treat Grant’s mandamus petition as
initiating a separate proceeding, distinct from the underlying
civil action, the filing-fee requirements would still apply
because the new proceeding would itself be a “civil action.” Cf.

3
The writ of prohibition and the writ of mandamus were both
common law prerogative writs. The writ of prohibition “was directed
to a judge, and it ordered him to cease trial of a case or to cease certain
actions in it.” DAN B. DOBBS, REMEDIES § 2.11, at 112 (1973). The
writ of mandamus was broader. “It orders a person, usually some
official of the executive branch of the government, or the judge of a
lower court, to carry out some affirmative action.” Ibid. The courts
of appeals are authorized to issue these writs and any other writs
“necessary or appropriate in aid of their respective jurisdictions and
agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
 7

In re Grand Jury Subpoena Duces Tecum, 775 F.2d 499, 503
(2d Cir. 1985).

Applying the filing-fee requirements to petitions for writs
of mandamus in civil cases furthers the purpose of the Act to
“reduce frivolous prisoner litigation by making all prisoners
seeking to bring lawsuits and appeals feel the deterrent effect
created by liability for filing fees.” In re Smith, 114 F.3d at
1249 (quoting Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.
1996)); see also In re Nagy, 89 F.3d at 117. Like frivolous
complaints in the district court, frivolous petitions in the courts
of appeal “tie up the courts, waste valuable judicial and legal
resources, and affect the quality of justice enjoyed by the law-
abiding population.” 114 Cong. Rec. 14571 (May 25, 1995)
(statement of Sen. Dole).

In seeking appellate review of the district court’s order
transferring his civil action, Grant therefore “brings a civil
action or files an appeal” within the meaning of § 1915(b). If he
wishes to proceed, he must comply with the requirements of the
PLRA.4

Amicus counsel for Grant relies on nine unpublished orders
we issued between 2005 and 2008 dealing not with § 1915(b)
but with an analogous provision in § 1915(g).5 Some of the

4
Because Grant’s mandamus petition stems from a civil
proceeding, we express no opinion on whether the filing-fee
requirements of the PLRA apply to petitions for writs of mandamus
when the underlying proceedings are criminal or concern an
application for a writ of habeas corpus. Compare, e.g., In re Nagy, 89
F.3d at 116, with Green, 90 F.3d at 416-18.
5
Section 1915(g) states that a prisoner shall not “bring a civil
action or appeal a judgment in a civil action or proceeding” in forma
pauperis if he has had three or more previous actions or appeals
 8

orders state that § 1915(g) does not apply to “a true mandamus
petition.” Chandler v. Dep’t of Justice, No. 07-5244, 2007 U.S.
App. LEXIS 24657, at *1 (D.C. Cir. Oct. 19, 2007); In re Tyler,
No. 05-5034, 2005 U.S. App. LEXIS 8912, at *1 (D.C. Cir. May
17, 2005); In re Ibrahim, No. 04-5435, 2005 U.S. App. LEXIS
8908, at *1 (D.C. Cir. May 17, 2005). Others say that the
prisoner’s ineligibility to proceed in forma pauperis does not
“extend” or “apply” “to petitioner’s mandamus petition.” In re
Perea, No. 08-5399, 2008 U.S. App. LEXIS 24139, at *1 (D.C.
Cir. Nov. 21, 2008); In re Chandler, No. 07-5405, 2008 U.S.
App. LEXIS 9094, at *1-*2 (D.C. Cir. Apr. 17, 2008); In re
Veteto, No. 06-5153, 2006 U.S. App. LEXIS 20284, at *1 (D.C.
Cir. Aug. 4, 2006); In re Judd, No. 06-5045, 2006 U.S. App.
LEXIS 16016, at *1 (D.C. Cir. June 22, 2006); In re Demos, No.
06-5096, 2006 U.S. App. LEXIS 16023, at *1 (D.C. Cir. June
22, 2006). All of the orders are in the form of summary
dispositions, consisting only of three or four short paragraphs.
All were issued without oral argument. In each order the only
authority cited is In re Smith, 114 F.3d at 1150, which—as we
have said—held that a “petition for a writ of prohibition” was
within the PLRA’s filing-fee requirements and recognized that
other circuits had ruled the same for mandamus petitions
“predicated on underlying civil claims.” In other words, Smith
seems consistent with our holding today but inconsistent with
the conclusion for which the orders cite it.

Since 2007, the Federal Rules of Appellate Procedure have
permitted litigants to cite unpublished opinions and orders
issued on or after January 1, 2007. FED. R. APP. P. 32.1. Our
local rule, adopted earlier, permits the parties to cite “as prece-

dismissed on grounds that it was “frivolous, malicious, or fails to state
a claim upon which relief may be granted, unless the prisoner is under
imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
 9

dent” such dispositions entered on or after January 1, 2002.
D.C. CIR. R. 32.1.6 Another local rule states that “a panel’s
decision to issue an unpublished disposition means that the
panel sees no precedential value in that disposition.” D.C. CIR.
R. 36(e)(2). Neither our local rules nor the national rule
specifies what effect future panels should give to unpublished
orders and judgments.7

The law-of-the-circuit doctrine means that “the same issue
presented in a later case in the same court should lead to the
same result” and that “[o]ne three judge panel . . . does not have
the authority to overrule another three-judge panel of the court.”
LaShawn v. Barry, 87 F.3d 1389, 1393, 1395 (D.C. Cir. 1996)
(en banc). Our court has not determined how this doctrine
applies to unpublished dispositions—unpublished because the
panel concluded that order or memorandum would have no
precedential effect. Most other circuits have decided, in local
rules, that unpublished orders or opinions do not have binding
precedential effect. See 1ST CIR. R. 32.1; 2D CIR. R. 32.1; 4TH
CIR. R. 32.1; 7TH CIR. R. 32.1; 8TH CIR. R. 32.1; 9TH CIR.
R. 36.3; 10TH CIR. R. 32.1; 11TH CIR. R. 36.2; FED. CIR. R. 32.1.
But see 5TH CIR. R. 47.5; Weaver v. Ingalls Shipbuilding, Inc.,
282 F.3d 357, 359 & n.3 (5th Cir. 2002).

6
Referring to these dispositions as “unpublished” has become a
misnomer. As many as eighty-percent of these “unpublished”
dispositions are now published in the Federal Appendix or available
online. See Scott E. Gant, Missing the Forest for a Tree: Unpub-
lished Opinions and New Federal Rule of Appellate Procedure 32.1,
47 B.C. L. REV. 705, 709 (2006).
7
The advisory committee notes to Rule 32.1 explain that the rule
“says nothing about what effect a court must give to one of its
unpublished opinions or to the unpublished opinions of another court.”
 10

Although our circuit does not have a local rule directly on
point, we agree that unpublished dispositions should not strictly
bind panels of the court. In our view, the weight afforded an
unpublished disposition of this court should be similar to that
which the Supreme Court grants to its own dismissals “for want
of a substantial federal question” or summary affirmances.8
While these dispositions have some precedential value, they are
“obviously . . . not of the same precedential value as would be
an opinion of this Court treating the question on the merits.”
Edelman v. Jordan, 415 U.S. 651, 671 (1974). Like the Su-
preme Court’s summary dispositions, unpublished opinions and
judgments of this court are often entered without oral argument.
See D.C. CIR. R. 34(j); SUP. CT. R. 18. And because the panel
issuing such a disposition must unanimously agree that it does
not “alter[], modif[y], or significantly clarif[y] a rule of law,”
D.C. CIR. R. 36(2), these decisions are frequently announced in
a way that makes them not “suitable for governing future cases.”
Hart v. Massanari, 266 F.3d 1155, 1178 (9th Cir. 2001); see
Colo. Springs Amusements, Ltd. v. Rizzo, 428 U.S. 913, 919
(1976) (Brennan, J., dissenting from denial of certiorari). For
these reasons, unpublished orders like those the amicus cites
may be considered persuasive authority, but they do not
constrain a panel of the court from reaching a contrary conclu-
sion in a published opinion after full consideration of the issue.

8
Before the elimination of the Supreme Court’s appellate
jurisdiction over state court judgments, the Court summarily disposed
of such cases by stating that the appeal was dismissed “for want of a
substantial federal question.” GRESSMAN ET AL., SUPREME COURT
PRACTICE 365 (9th ed. 2007). This was the equivalent of a decision
on the merits affirming the state court’s judgment on the federal
question. Hicks v. Miranda, 422 U.S. 332, 344 (1975). But see
ALEXANDER M. BICKEL, THE LEAST DANGEROUS BRANCH 126 (2d ed.
1986) (calling “want of a substantial federal question” as a reason for
dismissal “pure fiction”).
 11

We therefore hold that prisoners filing petitions for manda-
mus in civil cases must comply with the filing-fee requirements
of the PLRA. When Grant submits the required materials, his
liability for the PLRA fees under § 1915(b) will be calculated,
and he must pay that amount as provided by further order of the
court. If Grant does not file the requisite materials with the
court within thirty days, his petition will be dismissed.

So ordered.