Firm Chair Anthony F. Shelley's arguments before the U.S. Supreme Court regarding the filing fee provision of the Prison Litigation Reform Act (PLRA) were quoted in BNA Criminal Law Reporter. Under an existing statute, a prisoner who files a civil action or appeal in forma pauperis must pay court filing fees in installments. After the initial partial filing fee, the remainder is to be paid through monthly payments of a percentage of the preceding month's income credited to the prisoner's account. The parties argued whether the installment fee obligation applies per prisoner or per action.

Justice Antonin Scalia commented that if a prisoner files enough cases, he will never have to pay for them all and asked Shelley, who argued on behalf of the prisoner, what the disincentive is for the prisoner to file multiple cases. Shelley pointed to the "three strikes" rule in the statute and said a court can dismiss under the PLRA those cases that are frivolous. Congress also wanted to make sure the meritorious cases could be brought, he said, adding that the real disincentive is the initial partial filing fee.

Regarding a provision stating a prisoner must forward filing fee payments as long as his or her account exceeds $10, Shelley argued that this means the filing fee can be assessed even if it wipes out the account, if the account exceeds $10 at the start of the calculations. Justice Ruth Bader Ginsburg said the position of the Bureau of Prisons is that a prisoner must be left with $10 in an account no matter what. Shelley noted that this is a matter of grace and it is not set out in any regulation, pointing to two states where if a prisoner has $10.01, the prison will assess multiple fees even if it brings the account to zero.

This story was republished on November 11, 2015, in BNA Criminal Law Reporter and titled "High Court Ponders PLRA Filing."