Legal News

More Quibbling Over Precedent

By Brian Harris

About a year ago, I wrote an entry for this blog, High Court Quibbles Over Definition of ?Proceeds,? in which I discussed the Supreme Court?s decision in United States v. Santos.  In that case, Justices Antonin Scalia, John Paul Stevens and Samuel Alito, in their various plurality, concurring and dissenting opinions, argued over the stare decisis effect of portions of Stevens? concurring opinion and whether certain statements in that opinion would be binding precedent in future cases or simply inapplicable dicta.  Now, in an opinion issued June 19, the 3rd U.S. Circuit Court of Appeals has joined the fun.

In Hagan v. Rogers, a panel of the court issued a fractured decision, holding, among other things, that a district court had erred in ruling that prisoners bringing civil rights claims could not join together as plaintiffs under Rule 20 of the Federal Rules of Civil Procedure.  Judge Marjorie O. Rendell wrote the majority opinion, while Judges Kent A. Jordan and Jane Roth wrote separate opinions, concurring in part and dissenting in part.  While the three judges agreed on certain issues, they split on the key issues in the case: whether the district court erred in holding that joinder was inappropriate in the case and, if the plaintiffs were allowed to join together under Rule 20, whether they had to pay a single filing fee (apportioned among the 14 plaintiffs) or each plaintiff had to pay the full fee.

Rule 20 provides that ?persons may join in one action as plaintiffs if (A) they assert any right to relief jointly, severally, or in the alternative with respect to or arising out of the same transaction, occurrence, or series of transactions or occurrences; and (B) any question of law or fact common to all plaintiffs will arise in the action.?  Section 1915(b)(1) of the Prison Litigation Reform Act of 1995 (PLRA), on the other hand, provides 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.?

Rendell, joined by Roth in this part of her opinion, found that the district court had erred in holding that the PLRA implicitly repealed Rule 20 in the case of prisoner litigants and prohibited such litigants from joining together as plaintiffs. Jordan, while noting that he had reservations about the majority?s interpretation of the PLRA, agreed with them that the statute had not implicitly repealed Rule 20 with regard to prisoner litigants.  However, he dissented from the majority?s disposition of the appeal because he found that the district court ?correctly determined that characteristics of the prison setting will generally make joinder under Rule 20 impracticable and . . . this case fits that general rule.?

After concluding that joinder under Rule 20 was permitted in the prison context, Rendell and Roth parted ways on the subsequent question of the fee that prisoners joined as plaintiffs must pay.  Judge Rendell held that Section 1915(b)(1) of the PLRA ?can be read in complete harmony with Rule 20 by requiring each joined prisoner to pay the full individual fee.?  Roth, on the other hand, found that the plain language of the PLRA required that each prisoner-plaintiff pay an apportioned amount of a single filing fee.  While Jordan found (in the dissenting portion of his separate opinion) that the district court correctly concluded that joinder was not appropriate in this particular case, he nonetheless took Rendell?s side on the fee issue, agreeing ?with Judge Rendell that § 1915(b)(1) requires the collection of the full filing fee from each prisoner.?

Thus, the vote for treating prisoners like any other litigants under Rule 20 was 2-1 (with Rendell and Roth in the majority), and the vote to require each prisoner litigant to pay the full filing fee, even when he or she joins with others under Rule 20, was also 2-1 (with Rendell and Jordan in the majority).  Or was it?  Not according to Roth.

In an intriguing footnote at the end of her opinion, Roth argued that ?there is no judgment by the Court? on the filing fee issue ?because only one eligible judge has voted to require each prisoner-plaintiff in a joint action to pay the full filing fee.?  Roth contended that, ?because Judge Jordan would not permit joinder in this case, he should not be able to vote on the fee required in a Rule 20 joint action by prisoners.?  Echoing Scalia?s comments in Santos, Roth went on to argue that Jordan?s statements regarding payment of the filing fees by prisoner-plaintiffs ?are merely dicta.?  Rendell retorted that ?Judge Jordan and I do not agree with Judge Roth?s suggestion that Judge Jordan?s view as to this issue does not count.?  Rather, Rendell contended, the ?filing fee issue is clearly before us,? and Rendell and Jordan ?are in agreement as to its resolution.?

Of course, as in Santos, this spat over the precedential effect of a splintered opinion of the court is largely academic.  The real battle is yet to come, in a later case in which another panel of the court must determine whether the court?s precedents compel the conclusion that prisoners joining together as plaintiffs under Rule 20 must each pay the full filing fee.  If Roth is correct, the next panel to confront this issue will decide the issue anew; if Rendell and Jordan are correct, later panels will be bound by the decision in Hagan.  Until that time, district courts (and prisoner litigants and the parties they sue) will be left to sort out the confusion left in Hagan?s wake.

(Disclosure:  My firm was appointed by the 3rd Circuit as amicus on behalf of the prisoner-appellants in Hagan and my former colleague Joel McHugh argued the successful appeal on behalf of the prisoners.)

This posting is intended only to inform, not to provide legal advice; and readers should seek professional advice for specific applications of the information.

Bruce P. Merenstein
Schnader Harrison Segal & Lewis LLP
www.schnader.com

Full post as published by The Legal Intelligencer Blog on July 06, 2009 (boomark / email).