UNITED STATES COURT OF APPEALS
FIFTH CIRCUIT
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No. 96-20720
(Summary Calendar)
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IRA JACKSON, JR,
Plaintiff - Appellant,
versus
JOHN STINNETT; KENT RAMSEY; ROCHELLE
MCKINNEY; JIM GANT,
Defendants - Appellees.
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Appeal from the United States District Court
For the Southern District of Texas
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December 11, 1996
Before DAVIS, EMILIO M. GARZA, and STEWART, Circuit Judges.
EMILIO M. GARZA, Circuit Judge:
Ira Jackson, Jr., a Texas inmate, appeals the district court's
dismissal of his 42 U.S.C. § 1983 action alleging violation of his
Eighth Amendment rights. His appeal raises several issues of first
impression in this circuit regarding new in forma pauperis
provisions of the Prison Litigation Reform Act.
I
Jackson filed this section 1983 action against several prison
officials, alleging deliberate indifference to his medical needs,
and the district court certified him to proceed in forma pauperis
(“i.f.p.”). While this litigation was pending in the district
court, the President signed into law the Prison Litigation Reform
Act, P. L. No. 104-207, 110 Stat. 1321 (1996) (“PLRA” or “Act”),
which modified several statutes governing Jackson’s appeal. Soon
after the enactment of the PLRA, the district court dismissed
Jackson's suit as frivolous under the old provisions of 28 U.S.C.
§ 1915(d)1 concluding that Jackson’s claim had no arguable basis in
law. The court did not decertify Jackson’s i.f.p. status, and
Jackson filed a timely appeal to this court.
II
Before we review the district court’s dismissal on the merits,
we must first consider the effect of the PLRA on this appeal. The
Act amended 28 U.S.C. § 1915 to require new filing procedures and
fees for prisoners proceeding i.f.p.2 Both the filing and fee
requirements of the PLRA stand in apparent conflict with Fed. R.
App. P. 24(a), which states that once the district court certifies
a prisoner to proceed i.f.p., “the party may proceed without
further application to the court of appeals and without prepayment
of fees or costs in either court or the giving of security
therefor.” We must consider whether the PLRA amends the Federal
Rules of Appellate Procedure, whether to require Jackson to replead
his pauper status, and whether to assess Jackson a fee for this
appeal, all issues of first impression for this circuit.
1
The PLRA moves the provision by which the district court may dismiss
a pending action from section 1915(d) to section 1915(e)(2)(B).
2
Our review poses no issue of retroactive application of the statute,
because Jackson filed his notice of appeal after the Act became law. Leonard v.
Lacy, 88 F.3d 181, 184 (2d Cir. 1996).
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A
As amended, section 1915(a) provides that a prisoner filing a
civil appeal i.f.p. must file an affidavit listing all his assets,
as well as submit a certified copy of his prison trust fund account
statement for the preceding six-month period. The financial
affidavit Jackson filed in the district court (before the PLRA was
signed) does not meet the updated requirements, thus amended
section 1915(a) required him to file a new affidavit upon his
subsequent appeal to this court. However, Fed. R. App. P. 24(a)
provides that, unless the district court decertifies the prisoner’s
i.f.p. status, that prisoner may appeal his case i.f.p. without
further application to the court. The statute would require
Jackson to reapply to this court with a new affidavit; the Rule
would carry forward his i.f.p. certification from the district
court. Faced with competing mandates, we must decide whether
Congress’s procedural litigation reforms in the PLRA take
precedence over the rules of appellate procedure.
It has long been settled that Congress has the authority to
regulate matters of practice and procedure in the federal courts.
Sibbach v. Wilson & Co., 312 U.S. 1, 9-10, 61 S. Ct. 422, 424, 85
L. Ed 479 (1941); Wayman v. Southard, 10 U.S. (Wheat) 1, 21, 6 L.
Ed. 253 (1825). Congress delegated some of this power in 1934 by
passing the Rules Enabling Act, which gave the Supreme Court the
power to promulgate rules of practice and procedure for United
States courts. 28 U.S.C. §§ 2071-72. Despite this delegation of
authority, Congress maintains an integral, albeit passive, role in
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implementing any rules drafted by the Court. For example, all such
rules are subject to review by Congress; they take effect only
after the Supreme Court has presented them to Congress and after
Congress has had seven months to review proposed rules or changes.
Id. § 2074. Congress uses the review period to “make sure that the
action under the delegation squares with the Congressional
purpose.” Sibbach, 312 U.S. at 15, 61 S. Ct. at 427. Although
Congress has authorized the Court to exercise some legislative
authority to regulate the courts, Congress at all times maintains
the power to repeal, amend, or supersede its delegation of
authority or the rules of procedure themselves. United States v.
Mitchell, 397 F. Supp. 166, 170 (D.D.C. 1974), aff’d, 559 F.2d 31
(D.C. Cir. 1976), cert. denied, 431 U.S. 933, 97 S. Ct. 2641, 53 L.
Ed. 2d 250 (1977); United States v. Isaacs, 351 F. Supp. 1323, 1328
(N.D. Ill. 1972), aff’d, 493 F.2d 1124 (7th Cir. 1974). Therefore
Congress may at any time amend or abridge by statute the Federal
Rules of Civil Procedure, Rules of Appellate Procedure, Rules of
Evidence, or other federal procedural rules promulgated under the
Rules Enabling Act. Hawkins v. United States, 358 U.S. 74, 78, 79
S. Ct. 136, 138, 3 L. Ed. 2d 125 (1958); Mitchell, 397 F. Supp at
170.
There are two limits to Congress’s power to amend the Federal
Rules of Appellate Procedure. First, in granting to the Supreme
Court the power to make federal procedural rules, the Rules
Enabling Act stipulates that “[a]ll laws in conflict with such
rules shall be of no further force or effect after such rules have
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taken effect.” 28 U.S.C. § 2072(b). On its face, this so-called
“abrogation clause” seems to invalidate all federal statutes “in
conflict” with court rules. The abrogation clause, however, has
never been read so broadly. By qualifying the clause to say that
offending statutes will not have further effect after the rule
takes effect, the abrogation provision requires that the offending
statute have some effect before the rule’s enacting date.
Consistent with this observation, courts and commentators
generally consider the abrogation clause to trump only statutes
passed before the effective date of the rule in question. Penfield
Co. v. Securities & Exch. Comm’n, 330 U.S. 585, 589 n.5, 67 S. Ct.
918, 921 n.5, 91 L. Ed. 1117 (1947); see also 4 Charles A. Wright
& Arthur R. Miller, Federal Practice and Procedure: Civil § 1030 at
125 & n.2 (2d ed. 1987) (“Statutes enacted prior to the rules that
are inconsistent with them are superseded.”); Note, The Conflict
Between Rule 68 and the Civil Rights Attorneys’ Fees Statute:
Reinterpreting the Rules Enabling Act, 98 Harv. L. Rev. 828, 835
(1985) (“[T]he abrogation provision has been understood to apply to
inconsistent statutes enacted before the rules.”).3
3
Another good reason not to read the abrogation clause to nullify
provisions of the PLRA is that such a reading approaches a violation of the
Presentment Clause and the nondelegation doctrine. The abrogation clause of the
Rules Enabling Act purports to give the Supreme Court the legislative power to
repeal any federal law governing practice and procedure in the courts. Under the
Rules Enabling Act, the Court need only report such changes to Congress in the
form of a rule, which would acquire the force of law without Congress ever
casting a single vote. To say the least, such a power would strain the
Constitution’s limits on the exercise of the legislative power. U.S. Const. art.
I, § 7, cl. 2; INS v. Chadha, 462 U.S. 919, 950-51, 103 S. Ct. 2764, 2784, 77 L.
Ed. 2d 317 (1983); A.L.A. Schecter Poultry Corp. v. United States, 295 U.S. 495,
529, 55 S. Ct. 837, 843, 79 L.Ed. 1570 (1935); see also Note, supra, 98 Harv. L.
Rev. at 836-37. To avoid such a drastic result, we will not construe the
abrogation clause to dictate that Rule 24(a) invalidates Congress’s subsequent
amendments of i.f.p. procedure.
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By contrast, courts and commentators agree that a statute
passed after the effective date of a federal rule repeals the rule
to the extent that it actually conflicts. Autoskill Inc. v.
National Educ. Support Sys., Inc., 994 F.2d 1476, 1485 (10th Cir.
1993); 2 James Wm. Moore & Jo Desha Lucas, Moore’s Federal Practice
¶ 1.02[5] at 10 (2d ed. 1996) (“A clearly inconsistent statute
enacted subsequent to [the Rule’s effective date] would . . .
supersede or modify any conflicting Rule.”). The Supreme Court
promulgated the Federal Rules of Appellate Procedure by an order
entered December 4, 1967 making the Rules effective on July 1,
1968, see 43 F.R.D. 61, 67, 113, and the Court last amended Rule 24
on March 10, 1986 (effective July 1, 1986). Therefore under the
conventional reading of the abrogation clause, Rule 24 does not
nullify section 1915 of the PLRA, which became effective on April
26, 1996. Quite the opposite, the PLRA repeals the inconsistent
provisions of Rule 24(a). See 7 Moore & Lucas, supra, at ¶
86.04[4] at 22 (“[A] subsequently enacted statute should be so
construed as to harmonize with the Federal Rules if that is at all
feasible. If, however, there is a clear inconsistency then the
rule must give way because of the paramount power of Congress .
. . .”).
The second limit on Congress’s power to amend the Rules is the
general disfavor with which we view implicit amendment or repeal of
statutes. In the absence of a clear statement from Congress, we
are reluctant to hold that the PLRA implicitly amends a Federal
Rule. The PLRA does not mention the Rule, although both clearly
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govern the same procedure governing i.f.p. appeals.
It is hornbook law that “repeals by implication are not
favored.” Crawford Fitting Co. v. J.T. Gibbons, Inc., 482 U.S.
437, 442, 107 S. Ct. 2494, 2497, 96 L. Ed. 2d 385 (1987); Posadas
v. National City Bank, 296 U.S. 497, 503, 56 S. Ct. 349, 352, 80 L.
Ed. 351 (1936); Ysleta del sur Pueblo v. Texas, 36 F.3d 1325, 1334-
35 (5th Cir. 1994). However, courts long ago established an
exception to the repeal-by-implication rule: “Where provisions in
the two acts are in irreconcilable conflict, the later act to the
extent of the conflict constitutes an implied repeal of the earlier
one.” Posadas, 296 U.S. at 503, 56 S. Ct. at 352. To the extent
that the Rules Enabling Act (as expressed in Rule 24(a)) actually
conflicts with the PLRA, we hold that the statute repeals the Rule.
We therefore hold that the PLRA governs Jackson’s appeal in this
court.
B
For the reasons articulated above, the PLRA governed this case
from the day it was signed, and Jackson’s subsequent notice of
appeal triggered the new i.f.p. certification requirements for his
appeal. In the most technical sense, Jackson was not properly
certified to proceed i.f.p. in this appeal. See, e.g., Thurman v.
Gramley, 97 F.3d 185, 187 (7th Cir. 1996) (applying PLRA to
prisoner who filed notice of appeal after effective date of Act).
Therefore the PLRA requires that Jackson meet the new i.f.p.
requirements before we reach the merits of his appeal.
Several equitable considerations persuade us not to dismiss
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Jackson’s appeal altogether. First, the district court decided
this case after the PLRA became law, but did not mention the new
statute. Jackson apparently never knew that the statute governed
his appeal, and therefore did not submit the affidavits required by
the new law. Second, the PLRA requires little more than a change
in form of pleading pauper status. Compare R. at 14 (Jackson’s
petition to proceed i.f.p. in district court) with 28 U.S.C.
§ 1915(a). The major deficiency in Jackson’s i.f.p. request in the
district court is that it does not meet the section 1915(a)(2)
requirement of a trust fund account statement. Third, requiring
Jackson to start from square one will needlessly delay this
litigation. Jackson has briefed the court, and this appeal has
progressed to the point of decision. Finally, there is no
indication that Congress meant the new i.f.p. requirements to be
jurisdictional, so we retain jurisdiction to hear Jackson’s case.
Section 1915(b) deals only with the administration of fees, not the
jurisdiction of the courts.
Instead of dismissing Jackson’s appeal, we will allow him
thirty days to file a new petition to proceed i.f.p. consistent
with section 1915(a). If Jackson files a modified petition to
proceed i.f.p. within that time, we will hear his appeal without
requiring him to file a new notice of appeal or new briefs. If he
fails to file within thirty days, we will dismiss his appeal. See
Covino v. Reopel, 89 F.3d 105, 108-09 (2d Cir. 1996) (applying PLRA
and giving plaintiffs 30 days to meet statutory requirements).
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C
We also hold that the fee provisions of the PLRA apply to
Jackson’s appeal. Section 1915(b)(1), as amended by the PLRA,
provides that if a prisoner files an appeal i.f.p., he “shall” pay
a filing fee. As noted above, this provision conflicts with Fed.
R. App. P. 24(a), which provides that, once certified, Jackson may
proceed “without prepayment of fees or costs in either court.” The
new PLRA provision was in effect when Jackson signed his notice of
appeal, and for the reasons cited above, we hold that, to the
extent that Rule 24 would bar operation of the new statute, the
provisions of the PLRA take precedence over Rule 24.
Therefore we will assess the fee if Jackson chooses to replead
his case i.f.p. Congress has directed us to charge all prisoners
for appeals filed after April 26, 1996: “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) (as amended) (emphasis added). Although the
statute attaches the fee requirement upon the filing of an appeal,
Leonard v. Lacy, 88 F.3d 181, 184-86 (2d Cir. 1996); Martin v.
United States, 96 F.3d 853, 856 (7th Cir. 1996), we will not assess
fees against Jackson unless and until he decides to reapply for
i.f.p. status in the next thirty days. To assess Jackson a fee
today would frustrate Congress’s purpose in amending section
1915(b). The fee provisions of the PLRA were designed to deter
frivolous prisoner litigation in the courts “by making all
prisoners seeking to bring lawsuits or appeals feel the deterrent
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effect created by liability for filing fees.” Leonard, 88 F.3d at
185. We choose not to assess Jackson a filing fee today so that
the fee might have its intended deterrent effect when Jackson later
decides whether to proceed. Jackson should consider the filing fee
when deciding whether or not his appeal has sufficient merit to
pursue further. Therefore, for the purposes of Jackson’s appeal,
we will consider his resubmission for i.f.p. status to be the
filing of an appeal in forma pauperis under the Act.
Should Jackson decide to pursue his appeal i.f.p., we will
assess and collect the filing fee from Jackson’s account, subject
to the repayment provisions of section 1915(b). See Thurman, 97
F.3d at 187 (assessing fees for appeal filed after PLRA signed);
Leonard, 88 F.3d at 184 (same). If Jackson is unable to pay the
fee, he may pay in installments as provided in section 1915(b).
III
Accordingly, we will dismiss Jackson’s appeal in thirty days
unless he reapplies to proceed in forma pauperis within the
procedures of 28 U.S.C. § 1915(a), as amended by the PLRA. Should
he decide to proceed with his appeal, we will assess filing fees
under the amended provisions of the Act.
IT IS SO ORDERED.
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