dissenting:
I respectfully dissent. In my view, we have discretion to hear this appeal without regard to whether Plaintiff has three strikes. I would exercise that discretion and address the merits.
My views can be summarized briefly. The three-strike provision, 28 U.S.C. § 1915(g), does not prohibit prisoners with three strikes from appealing; it merely requires them to pay the full filing fee in advance — a requirement that applies to all appellants except those proceeding in for-ma pauperis. When an appellant has not paid the required filing fee, Federal Rule of Appellate Procedure 3(a)(2) grants the appellate court broad discretion regarding how to proceed. The rule permits the court to take any action “it considers appropri*1213ate.” On occasion, the appropriate action may be to hear the appeal and collect the filing fee later.
Exercising that discretion in favor of a three-strike prisoner does not contravene the purpose of § 1915(g). The purpose of that section is to relieve the burden on the federal courts arising from frivolous prisoner litigation. When judicial efficiency is better served by addressing the merits of an appeal than by ruling on whether a prisoner has three strikes, the exercise of Rule 3(a)(2) discretion to hear an appeal is completely consonant with the purpose of § 1915(g). Nothing in Rule 3(a)(2) or § 1915(g) requires, or even suggests, that we should use the rule to hear an appeal only in “extraordinary circumstances.” Majority Op. at 1210. I shall later mention several circumstances in which an appellate court may find it appropriate to hear an appeal regardless of, or without considering, whether a prisoner has three strikes. Some of these circumstances may be considered extraordinary, but others certainly are not.
I now proceed to a more detailed discussion.
Rule 3(a)(2) states, “An appellant’s failure to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for the court of appeals to act as it considers appropriate, including dismissing the appeal.” The rule undoubtedly contemplates that one of the steps an appellant may fail to take is paying the filing fee. When Rule 3 was amended in 1979 to add subdivision (e) (which mandates payment of required fees “[u]pon filing a notice of appeal”), the Advisory Committee Note explained:
In view of the provision in Rule 3(a) that “[f]ailure of an appellant to take any step other than the timely filing of a notice of appeal does not affect the validity of the appeal, but is ground only for such action as the court of appeals deems appropriate, which may include dismissal of the appeal,” the case law indicates that the failure to prepay the statutory filing fee does not constitute a jurisdictional defect. See Parissi v. Telechron, 349 U.S. 46, 75 S.Ct. 577, 99 L.Ed. 867 (1955); Gould v. Members of N.J. Division of Water Policy & Supply, 555 F.2d 340 (3d Cir.1977).
In other words, when the appellant has failed to prepay the filing fee, the appellate court is authorized “to act as it considers appropriate.”
The three-strike statute, 28 U.S.C. § 1915(g), does not conflict with or trump Rule 3(a)(2). To begin with, it is useful to put § 1915(g) in context. Section 1915, entitled “Proceedings in forma pauperis,” relates to litigation by indigent prisoners. It relieves such prisoners of several financial obligations that would otherwise be imposed. With respect to filing fees, the prisoner is still required to pay in full, but the fee is paid periodically, out of funds that may or may not be available in the prisoner’s institutional account. See § 1915(b). In addition, the prisoner may be entitled to a free copy of the record on appeal, a free transcript of proceedings, and free process. See § 1915(c)~(d).
What § 1915(g) does is limit the benefits conferred by § 1915. It does not, however, limit the application of any other statute or rule. Section 1915(g) states:
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an action or appeal in a court of the United States that was dismissed on the grounds that it is frivolous, malicious, or fails to state a claim upon which relief may be granted, *1214unless the prisoner is under imminent danger of serious physical injury,
(emphasis added). Thus, all that a prisoner with three strikes forfeits — all that such a prisoner can “in no event” do — is “bring a civil action or appeal a judgment in a civil action or proceeding under this section.” § 1915(g) (emphasis added). The prisoner with three strikes should therefore be treated as an ordinary appellant— one who has to prepay the full filing fee but is eligible for relief under Rule 3(a)(2).
I agree with the majority opinion that a statute “should be read so as to give effect to all [its] provisions.” Houchin v. Zavaras, 107 F.3d 1465, 1469 (10th Cir.1997). In my view, the above reading of § 1915(g) does that. Recognizing that Rule 3(a)(2) survives § 1915(g)’s three-strike provision does not eviscerate § 1915(g). Section 1915(g) still deprives the three-strike prisoner of what would otherwise be several categorical rights of an indigent litigant; the prisoner is left only with the mere possibility that the appellate court will use Rule 3(a)(2) to grant a waiver of the requirement to prepay filing fees in full. Courts that are now overburdened by frivolous prisoner litigation are not likely to be eager to grant three-strike prisoners relief under Rule 3(a)(2).
Perhaps there will be occasions when a court invokes Rule 3(a)(2) because it is impressed with the merits and importance of the prisoner’s case and believes it would be an injustice to deprive the prisoner of the opportunity to pursue the claim just because the prisoner cannot prepay the full filing fee. Cf. Rivera v. Allin, 144 F.3d 719, 731 n. 18 (11th Cir.1998) (because three-strike prisoner raised important constitutional issue, appeals court would not require immediate full payment of filing fee). Much more common, however, will be cases in which the court finds it more efficient to address the merits than the three-strikes issue. For example, in Garcia v. Silbert, 141 F.3d 1415 (10th Cir.1998), apparently the panel opinion had already been prepared when the three strikes were discovered. At that point, dismissal of the appeal would have been easy, but the useful law set forth in the opinion would have been lost, no doubt resulting in future wasteful litigation on the same issue. Efficiency of the courts counseled disposing of the case on the merits.
In other cases the substantive issues on appeal may be easier to resolve than whether the prisoner has three strikes. Substantial effort may be required to check the prisoner’s litigation history; and even when that history is known, it may be unclear whether to count a loss as a strike. For example, in each of the three eases counting as strikes against Plaintiff, all or part of the complaint was dismissed for failure to state a claim. In each, the district court applied our then-current law imposing a heightened pleading standard on § 1983 claims. Since then, we have recognized that this standard is inconsistent with the Rules of Civil Procedure. Currier v. Doran, 242 F.3d 905, 916 (10th Cir.2001). We have not decided whether it is proper to count as a strike a dismissal that was predicated on erroneous Tenth Circuit law. Also, in one of Dubuc’s strike cases, Dubuc v. Boone, No. CIV 93-192-B (E.D.Okla. Jan. 30,1995), the district court dismissed part of his § 1983 claim as moot because the prison had ceased to enforce its grooming code and its religious exemption policy. I question whether dismissal of a complaint should count as a strike when a portion of the claim became moot as a result of a defendant’s action that may have been motivated by the complaint. This court and its staff could spend a great deal of time and effort resolving the facts surrounding an apparent strike and the law governing what constitutes a strike. We have discretion under Rule 3(a)(2) to *1215avoid those tasks when addressing the merits is relatively simple. It would be ironic if § 1915(g), whose clear purpose is to reduce the burden on the courts, required us to take the more burdensome course.
Not only does my reading of § 1915(g) give effect to all its provisions but it also conforms to another revered canon of statutory construction: “It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. The intention of the legislature to repeal must be clear and manifest.... There must be a positive repugnancy between the provisions of the new law and those of the old;.... ” United States v. Borden Co., 308 U.S. 188, 198-99, 60 S.Ct. 182, 84 L.Ed. 181 (1939) (internal quotation marks and citations omitted). The same rule applies to partial repeals. We have stated that “we find no merit in the argument that the partial implied repeal of a statute should be viewed with less disfavor.” Yellowfish v. City of Stillwater, 691 F.2d 926, 928 (10th Cir.1982). We should avoid interpreting § 1915(g) so as to repeal in part Rule 3(a)(2).
I have found no reported decision regarding the impact of § 1915(g) on Rule 3(a)(2). But there are two reported decisions addressing whether the words “in no event” in one statute trump general language in another statute. Both cases involved statutes of limitations in professional malpractice actions. Roughly speaking, the statutes set limitations periods running from the date the plaintiff discovered the cause of action but then said that “in no event” could a suit be filed more than a specified number of years after the act of malpractice. Another statute, however, tolled all limitations periods while the plaintiff was under a legal disability, such as minority. Both decisions held that the minority-tolling provision applied despite the “in no event” language. Hatfield v. Bishop Clarkson Mem. Hosp., 679 F.2d 1258 (8th Cir.1982) (interpreting Nebraska law), vacated, 701 F.2d 1266 (8th Cir.1983) (certifying issue to state supreme court, which reached the same conclusion shortly thereafter in another case, Sacchi v. Blodig, 215 Neb. 817, 341 N.W.2d 326 (1983)); Kohrt v. Yetter, 344 N.W.2d 245 (Iowa 1984). Moreover, unlike § 1915(g), the “in no event” sentences in these two cases did not expressly limit the scope of the phrase to the statutory section in which the phrase appeared. I am comfortable that when Congress wrote “in no event shall a prisoner ... appeal a judgment ... under this section,” it did not mean to negate provisions in other statutes or rules.
My reading of the statute conforms to our single holding in point. In Garcia v. Silbert, in which we ruled in favor of the prisoner, we wrote:
Although neither party addresses the issue, Garcia’s appeal before this court, filed over two months after the PLRA [Prison Litigation Reform Act] went into effect, is governed by § 1915(g). Because Garcia’s complaint does not allege imminent harm and he has had at least three prior actions dismissed as frivolous, he should not have been permitted to appear before this court without full prepayment of all required fees. Nevertheless, “[s]ection 1915(g) is not a jurisdictional limitation ...,” Pigg v. Federal Bureau of Investigation, 106 F.3d 1497, 1497 (10th Cir.1997), and we therefore elect to reach the merits of this action.
141 F.3d at 1417 n. 1. In short, we addressed the merits of an appeal by a prisoner with three strikes before the prisoner paid the filing fee. Garcia did not state that the court was required to decide the appeal; the court exercised its discretion to hear the case. In several other appeals *1216we have refused to hear the three-strike prisoner’s appeal when the filing fee has not been fully paid. But just as the exercise of discretion to hear an appeal does not imply that the appeal must be heard, the exercise of discretion to dismiss the appeal does not imply that dismissal is required. None of the opinions that dismissed appeals even mentioned Rule 3(a)(2) or addressed the question whether dismissal was mandatory.
Hence I dissent. For reasons that it would be inappropriate to expand upon, the interests of judicial efficiency would best be served if we exercise our discretion and decide the merits of this appeal before payment of the full fee.