case number seven six zero four eight six two six zero six one six six six two one three six two nine nine and six three three three david semma rebbe at all v rate or mon warded argument not to exceed twenty minutes per side miss wellington you may proceed and i reserve two minutes for your morning good morning ma'am please the court katy wellington on behalf of petitioners i want to start with the central legal issue in this case which is whether section nine hundred fifteen a grants court authority to impose partial filing fees and petitioners the text of the statute does not grant courts that authority in the structure of section one nine hundred fifteen as a whole demonstrates that congress explicitly considered whether to impose partial filing fees on prisoners in limited those fees to civil rights actions am a kiss has cited the greater includes the lesser principle to justify the imposition of partial filing fees that principle is inconsistent with a textualist approach to statutory interpretation it looks at the polls maybe let's just put greater or lesser to the side for a second sprocket that but in terms of textual if stuff is not just silent in both directions i mean you could have clarified that there was no discretion i think we would have to agree with you could've clarified there was discovering if you can imagine clarifying language in either direction which in it seems to me it's just silent and then why not look whether it's maybe we can ignore greater or lesser about what everybody was doing before the statute and that seemed to allow this flexibility so so to answers the first is congress has explicitly used the word partial fees and other statutes when it wanted to grant courts that authority section one nine hundred fifteen b one explicitly uses the word partial in the criminal justice act which talks about requiring litigants to make partial payment towards representation also uses the word partial so congress certainly knew how to use the word partial when it wanted to grant court's authority to impose partial fees with respect to the prepare a precedent those precedents are wrongly decided most of the cases rely on brayton versus dell which is in one nine hundred seventy seven case out of the southern district of texas that case reached its conclusion based on an analogy to the criminal justice act which as i just mentioned explicitly grants court's authority to require litigants to make partial payment towards representation that is a faulty and knology you know we're not talking about jurisdiction of the federal courts congress i mean that's your position right so in one thousand no four in the bradford case the u s supreme court held that section nine hundred fifteen must be construed according to its terms and that the right to prosecute in form a proper is cannot be extended by implication beyond its terms and the supreme court expressly rejected the common law notions of the authority of courts to permit litigation in form of pop or is had been imported into the  informal popper's statute so that bradford case the supreme court explicitly said that's not appropriate in the informal popper's context we have to look to the explicit terms and indeed in the nasser case and in the patsy case the supreme court more recently has said that where congress created a detailed statutory scheme specifically addressing the relevant question and went so far and no further courts should not create judicial ad hoc rules that go that extra step and that's what the district courts did here they departed from the clear text of the statute which says that partial filing fees are appropriate in civil cases filed by prisoners and took it a step further i'd like to have a question about it said that the criminal justice act allows for personal filing fees and i'm like you to tell me where that is sure and that's an eighteen u s c section three thousand and six a and it's partial payment for representation i do not feel it's how i am interested in how the criminal justice act in effect with this because if you look at three thousand and six a seven proceeding before appellate court there's a person for whom counsel is appointed under this section which could include a hate petition or appeals to an appellate court or petitions for rid of sort you may do so without repayment of fees and costs or security therefore and a or b does it just carve out everyone who's gotten appointed counsel through the c j or does it mean you go over to the to nine hundred fifteen and then you have to go through the p the other side is right or true they can have to how do these work together so i'm not aware precedent expressly extra dressing that issue it sounds like that in that situation iligan might be accepted from submitting the affidavit because the court has already made a determination that that person cannot afford to pay for the costs of representation and may be permitted to proceed in form a pop press so my assumption would be that that more specific statute to suit directly addressing the c situation would govern it but it specifically also says he may do so without the prepayment of fees and costs for security there for a end without piling affidavit so i'm just wondering whether the c t a provision just makes everything out in other words if you got a council it could happen in a p b s then we don't need to worry about i just don't know how these two so my assumption would be that the intention of that statute is to say ok once we've appointed counsel we're not going to make that counsel jump through hoops to get inform a pop or a status and so that would be my assumption that it would govern in that situation of course petitioners here were proceeding pro se so that statute would not apply to them and to many just understanding the point is if there's a point to counsel we don't worry about any of this and that would be my my initial take on that statute the important thing to keep the question about the context of the phrase without prepayment of is without prepayment fees and they want and then it says or security therefore so i'm i'm i'm not i'm trying to imagine exactly what they're referring to there but the my instinct is that whatever they're referring to is security would involve quite a bit of discretion so i think the discretion that's granted is the discretion to determine whether or not it litigant can pay the full filing fee and needs to put up you know security to show that they can pay the full fight so i'm i'm i'm starting with the assumption that they make that because if you say no fee you don't have to worry about security so i'm starting with the all or nothing and they say all consistent with your position but then i'm noticing when they say all if they can't produce it they've got to produce security right well in that situation in which they're not excusing you they're saying you have to pay all fees that that's your position right it's all or nothing here they're saying all and for whatever reason you can't come up with the actual cash whatever it is of five hundred five dollars or something and you you then provide security is no is not what that means i am not sure if that's correct i think the word security may have been an older reference to the security field it's example of the entire cost of printing the record so i'm not sure if that is actually in use right now with respect as if there were security there for but for the fees even if you read that to include security it simply granting court's authority to determine whether or not someone has enough money for security and i got you i agree with that one hundred percent but what i'm getting at is your position is that it's all or nothing at all with prepayment fees and then we get to the security therefore and that by definition does not have an all or nothing at all component it's it's it's soley discretionary is this bank account statement is this you know car whatever is using security sufficient so that seems funny to me something that has tons of discretion in connection with something as no discretion that's the press what i'm getting at and i think your first answer is this is an artifact and we shouldn't let it affect what with our prepayment fees means is that is that what i mean that's my first answer my second answer is it's still that's not granting court's authority to impose a partial filing fee it's simply saying that where there are security that might be required the court is making a judgment as to whether or not that security is sufficient so just one other thing you know so cases is really argued the king case wrong you you responded that no it's right and by the way you know twenty to forty one are you please separate point if we if we think let's just say hypothetically we think wrong should we take the view let's not extend it to twenty to forty one or that created ministre to problems that i'm not seeing so this court it's up to you whether to extend it to twenty to forty one certainly the statute to twenty to forty want to answer my question you agree that this panel is not bound by can can't be yes i agree but this court would have to deal with the fact that section twenty two forty one is the general he'd be a scorpio statute and there is no basis for logical decisions which i think i kind of agree with you we've ruled twenty to forty one is different than kate that the logic doesn't make any sense but it seems to me that that's a perfect vehicle for o circuit so if it's all right with the presiding judge i also want to ask you a little bit more about sub b there's a fee provision in the statute that talks about civil actions and also for actions the filing fee will be three hundred fifty dollars this is nine hundred fourteen survey by the way except that an application for a writ of habeas corpus the filing fee shall be one percent shall be five dollars so there they say civil actions the fee is three hundred fifty dollars and then they make an exception of civil actions for he is the exception though is to the rule that provision indicates to me it doesn't not that hey b s our civil actions why else would have why would why else would there be the exception to it so two answers the first is that provision is clearly distinguishing between civil actions  so the second answer is you are distributing the word civil to suit or proceeding you have a disjunctive or there so typically you would not distribute civil to suit or proceeding the word suit in proceeding certainly in compass hey b s actions without implying that those actions are civil right thank you so is there anything practically that is weird about having twenty two forty one with one set of payment rules and twenty two fifty four twenty five with another set of payment rules and that in other words i'm assuming so this is different from judge griffin's point which is that if we did a different rule for twenty to forty one they might suggest we in banking kate i'm actually trying to imagine a world in which can cade lives between two for forty one is treated differently and i'm trying to figure out if that is administrative flee foolish like one reason it might be foolish is you might have lots of people just filing the complaint mention twenty to forty one and twenty to fifty four like they just do both and now we have to figure out which payment system applies but can you say i'm just trying to work through whether you can have opposite systems or different systems for those two regimes so i think this this court would have to decide are you going to take how i hate b s petition or labels their case so in a lot of situations hey b s petitioners are saying this is a twenty to forty one case when it's actually a twenty to fifty five k so in these these cases are good example of where i see you may and option where they mention both you're telling me they may say one thing they mean something else and so the court would have to make some kind of determination of what kind of action is this really which would actually possibly require this court address difficult issues as this court didn't hill against masters with respect to when twenty to forty one is available to heebie as petitioners it's my right to think that you think whatever we do we should do the same thing for all three i think that that makes sense why would we extend the wrong precedent to another area that we're not required doesn't make any sense certainly this court is not required to extend kinkaid if it disagrees with the ok well are you do you do you save or bottle i did l well it's binding in certain respects well it says that petitions are not civil actions for purposes of appeal or a for example that that's binding and it goes to one of the points that i want to make quickly argument i agree with you in theory about that ari yes in theory that the definitely you don't want to do something that's wrong even if you've done it for a long time there's no question about that but it's universal all the circuits of hell that s petitions are not civil actions for purposes of the fee filing but i mean the two i mean there's a couple things that make one look a little more closely at this right so point number one is a lot of these decisions are not super carefully reasoned that's that's pretty clear here ok all of i think our decision of many others was the saying zajac of having it spill over to the three strikes and it seems to me the argument of using files an appeal gets rid of that problem so in other words what i think they were shooting at was a false target that really does have you wondering i gree with you a very good reason not to overrule precedent is expectations reliance interest we have something working relatively well and that's something we have to work through in our own heads but it does seem like some arguments that have been raised here have not really been addressed very carefully by these other chords well your honor i think i think putting ours if you look at the issue of files an appeal whether that brings in as the mc you suggest every appeal including pro se then you can get all sorts of constitutional arguments about why that's what what is that fact pattern given what judge larson just mentioned she you have the direct you have the initial case with counsel you have counsel on that direct appeal so filing fee and said something about in full fat affection yes that doesn't really mean in full satisfaction it just means temporary that affection in other words we're always talking about prepayment of that could be collected at the back and  inform a pop or a status at the beginning and you were and you have to pay only three hundred that the five zero five but now you have all this extra money and where you make you pay the remaining two theoretically that's right but but usually what happens with costs on the peel is that the losing party pays costs and would you this language security therefore did you know did you know what i was referring to when i said you know how it goes right it won without prepayment of fees that's right i'm now shifting to the discussion point yes and then it says or security  because you can provide security for that you're providing security for the payment of the entire feet it doesn't mean that you have discretion to to say instead of five hundred five dollars you paying three hundred dollars and you go ahead go ahead there's definitely discretion so what about someone who after this you you win and the next order is the district court judge says yeah just give me fifty bucks and as for the rest of it i'll take a promise that's the security measure in just the first part of the hypothetical let's say you win win in district court you win in the sense that it's all or nothing at all i when my position with your position will come fall or nothing at all yes that clever savvy district court judge maybe the one in this very case says ok fine i'm only going to ask you to produce fifty dollars today and as security therefore for the five or five i'll take a promise that's all they do well think the three things going to really happen they're because if you're not granting that waterhole recently have to pay the fees perhaps you can come in with security for the fees instead so you still have the all or nothing situation you in the all situation you might be temporarily exempted from paying the actual fee but you could provide security for it right and whether it's you later it's not for sale or not is a different issue whether it's legally required is is what we're arguing we're saying this is in a situation like that when you're when you're on the hook for the entire fee  and may it please the court a long settled principle resolves this case when the text of a statute is clear the judicial inquiry ends where it begins the text of this statute is clear it covers all prisoners who appeal inform a proper i'd like to start by going to judge larson's point about the criminal justice act that really seems to be the driving force behind my behind my friends on the other side's argument is that what about criminal appellants the criminal justice act solves that problem completely almost every single criminal appellant in the country appeals for free without needing to rely on one nine hundred fifteen at all because of the criminal justice act it's it's subsection d'sevyn of eighteen u c three thousand six and exactly what your honor judge larson read and it allows a prisoner who's represented by counsel under the c g a to appeal for free again without needing to rely on the way that works is that the one when it says files on appeal does pick up everything but one of the everything's is fixed don't swear that's your way of thinking about it yes your honor another way of think they really were thinking about criminal appeals when they did absolutely they were and we know that from b three and before  hundred fifteen they mention criminal palings paying that initial partial filing fee so we know they were and they wanted to pick up all kinds of appeals the nice thing is most criminal problems and it's basically all criminal the references start with a no event so i don't have to do this or that if these conditions are met if the district courts below the one in the orders no your honor and that's or if they did not rely on the one why do we decided of appeal because it's mandatory so i think this court is mandatory right so if the partial or allowable under a why why do we even go to be one will be one start with not start with not withstanding a so b one and then it sa ictional of course what i mean is that it's the dish of course we're required to to impose these full fees under subsection b and this court's now that the arguments presented to it should should require them to do so but they  but i'm thinking well of the district courts relied on a and if a is correctly decided and resolves the case why do we have to do so here's my answer to that your honor so far really two points first it's definitely because we asked him to brief and how can we because if we say for now if i had a client i might say i'm happy to win under a one but i have no clients and i really think the court should get the right under me even though we appoint you and ask you to brief i have issues i mean if that's nice but it doesn't mean we have to decide all five issues just because you did all the work of course and actually you know the way of judge and we usually decide cases on the narrowest grounds possible at least at least a lot of good judges do and the broader the the ruling often we get into mistakes in the narrowest ruling is often the way to go and i mean i i'm going to go in here thinking that you  will a little more problematic for you and i know everybody wants us to resolve but i just i'm sure we have to go so your honor i'll say a few things to that first i agree that i have the better reading of a so we agree on that second though i don't think it's necessarily narrow or broader to go on b and i think the third and most important point is that b is what district court shall do so is discretionary when they are not asked  honor i think most of these are processed without any adversarial briefing below so i think what typically happens is that there is a motion filed by the appellate by the i guess he views petitioner at that point the soon to be appellant and the federal government doesn't ever come in  and have adversarial briefing so the district court is left with just one motion from one side and has to decide this issue by itself and i think this gets to i mean let's just say for the sake of argument you're right about  right to do this and quote we should fix it but that would have involved whether there's a way for us to deal with can cater the bank or to deal with when you think about those issues you're supposed to pay attention to a bunch of other questions not just whether it was right the whole premise of story decisis is that it was wrong so you start with that it's wrong but that doesn't tell you what to do next and there's a very big problem with your suggestion about what to do next which is that we have a fairly settled system i mean these are going to be called jim say well motions across the country clerk's offices prison wardens who is this guy how did this happen  is this really worth it to upset the system it will and it's working it's not terrible well i mean the film the public is is being burdened with some with some more fees i agree they're not it's not terrible but it is a problem and the statute congress passe not being followed which is itself a problem but i judge it suddenly i think i can help you with this upsetting the apple cart point by holding the files an appeal covers all appeals and that you won't upset the apple cart much at all kincaid remains on the books entirely and you can even extend can cade to twenty to forty one he b s actions if you wanted to and that the files in appeal will avoid the three strikes rule as your honor pointed out so i don't think it can remain entirely intact and just when the files an appeal to that part of the case when someone files an appeal they must pay the full filing fee that point by the way in kincaid it was not raised at all and so it's not precedent at all as i think the parties recognizing the fee and kate was the trial level so the few was an appellate fee but i read the briefs yesterday and i think they're now on the docket and the the federal government in that case agreed that it applies the statute applied only to civil appeal yes so that issue was not in the case at all in the holding of the case isn't it i mean even though it wasn't properly argued very is the but if you if you read the decision  applies to the appeals to does it so it's it is the classic issue that passes without being raised whether it's all being considered holy no it's not the holding it if it is all holding it's a drive by holding which have which has no presidential effect your honor i encourage you  all the a drive a drive by holding is one that's neither considered nor presented to the court in fact even if it's not presented to the court the court says we hereby hold the following we have to follow the court did not hold regime but not extend it to twenty to forty one which is one of the things you've argued in aren't you anxious about that implementation problem because you have two different things you mention twenty two forty one and twenty two fifty four in the petition which pro se not in proper plausible so now they're stuck which regime applies or the point that i was willing to made that you might have a characterization problem which we know we don't want to be doing right so what would  does that suggest we have to go all one way or all the other no maybe i'm not understanding no i think so again this is about about the civil part of the case so this is if the court i think the easiest way to resolve the case is say files in a plea appeal applies to all appeals and we don't even mention can cain because you don't need to but if you have if you want to talk about because of your recent conversation with judge griffin that's because of the whole thing point no i that's that's always been my point that's the easiest way to resolve the  case is to hold that files an appeal does not apply and it does not and there are several kate it does not it does not require you to revisit can get it all i encourage you to read the briefs and kincaid they just arrived i think yesterday and the government agrees that only civil appeals are covered so they conceded that point that point is now fully presented and that it's not it's not precedent it's it it's the classic issue that lurks in the record without being raised  decided from webster vs fall this court is applied that judge griffin you have applied that exact rule in king versus taylor for example where you say an issue that wasn't presented doesn't count as precedent footnote five of  so that's the easiest way to judge sudden i want to help you here is we've been applying it differently and if we were to bring all the courts offices and all the people in the prisons that are implementing this they would say that's not what we're doing right now or are likely right about that i think me help you with what i see happening post after this case so i think i do think that there would be some tension between this this potential holding and can cade and i and it might well happen that the court will in a future case need to clarify this this panel's decision versus can cade so i think that i do think that that's a potential conflict not just for the administrative reasons that you set out but also because this mean is there a way to distinguish on this issue twenty two twenty two forty one petitions twenty two fifty so if so what is the logical distinguishing characteristics that would have us treat one differently than the other so you there are there is a way to distinguish the reason i didn't is because in this type of twenty forty one which is brought under the twenty two fifty five saving clause which this court's precedent held hill versus masters allow there really is no difference so that's why i didn't raise it because it wouldn't even apply in this case the quintessential twenty two forty one doesn't apply to this we usually decide this case exactly right host to potential theoretical other cases that could come before us so exactly wh i think you just answered your question there's no logical way i did it i did intent and that's exactly how i wanted to answer the question i'm sure i'm missing something but to correct me quickly on this if you get what you want in my right that we have a situation where one of these five individuals appeal because they don't want to pay fifty bucks they thought they should pay zero and they're going to come away with having to pay five o five that's right over over time so in time right they had they didn't think that was a possibility when they appealed well they five so i actually want to make two points if i could what judge larson said is exactly correct it's always it's always prepayment so they're always on the hook weaver versus tombs from this court says that it that it's always there postponement of fees i think is what we've reverses tombs that still cross appeal i don't think they can be required to pay more or less across your honor i think that the and what answers that question is they're not being required to pay more they're being in excess of what the record to do right now was the most it was across there that's the whole point of a cross appeal right but there's no one large mentally but arguably what the district judge did here by saying in full satisfaction was contrary to the statute because it really there says pre payment so in theory there are just two different regimes for collecting in the back and and in fact if the statute were actually followed it could be that a district judge could cut the fee and circumstances so three of the five here have a question my head why are we so i mean they're both prepayment regimes under the statute maybe not as a function weighted in practice so i was kind of wondering why or but largemouth in the sense that the judgment immediately requires something that was not required and may not have who knows what was going to happen down the world two points one the judgement actually will it will diminish the amount that they pay up front so the thousand three of the five have about a thousand dollars in coming in every month or as their prison balance so that's going to be two hundred dollars instead of what they were required to pay which is four hundred or three fifty one would most fit to a more fifty right but they have they have a lot less coming in per month so actually that person i think forget exactly who that is but that person will pay less upfront as well so that it's actually a diminishment it first and then it's not in the large mean ever because they're always on the hook for the five o five thing that really would have won what would have won what they really win if we go your route did they win i don't think they were i don't think they win if they go if they go this route but that but you know what what does when is the law in congress wins because congress passed this statute and it's not being followed and this court has the opportunity to to to make congress follow or to me to make the law correct and really i don't want to leave this point without pointing out that they conceded they can cave does not govern judge griffin side even though i understand honour's skeptical of that they can see that was the concession to forty one as to twenty two forty one right so if i if i could in last the court i was further questions on the subsection b point if i could spend a few minutes on the subsection  point so i think the what the parties do and you heard it at argument today they say that the discretion in aid is only the discretion to determine the amount rather to determine whether someone is indigent to determine whether someone can afford to pay the filing fee if that were true this would not be a may authorize statute this would be a shall authorize statute and there are still authorized statutes in the in the u s code that's the kind of discretion that's at issue and in those cases one was that the supreme court last year in i asked this case i think it's eighteen u s c thirty five ninety nine it's a shell authorize it's if the district court finds that someone cannot afford to pay for the investigation or to pay the filing fee then it shall authorize that's what the parties told in this statute into this is a may authorize statute which comes with back up with it which comes with the discretion to impose all or some not but not all i think the best way to think about this is to think about a statute and there are over one hundred in the u s code that allow a prevailing party to receive costs even full costs one is that issue in a supreme court case from two weeks ago rimini street versus oracle it's i think it's seventeen u s c five zero five and it says that the district court may award full costs to the prevailing party under that kind of statute which is a parallel to this kind of statute no court in the country has questioned whether if that's an all or nothing of course it's not a district court can award full costs up to full cost or it can award say ten percent of costs this court in published opinions have have a  affirmed on a an abuse of discretion review an award of ten percent of costs and in the same way that that's an up to full cost this is a down to zero it is a statute that gives the district court the discretion to waive all or at the discretion went on and did this case no one doubts that all courts may waive pre payment it's expressly in a one now is because congress has really amended the statute many times so all we're doing here is interpret that may authorize phrase that repeal by implication and those are is the court knows highly disfavored and they only will happen if there's irreconcilable conflict between the two provisions and be in a far from being an irreconcilable conflict worked perfectly hand in hand inside by side the subsection b is the mandatory regime and if you don't fall within the mandatory regime you go right into the discretionary regime which one one way or the other these prisoners do  filing fees were proper on these on these five prisoners when one other question you rests a lot on the reason for which to refer to criminal judgment appealing to  answer is it's misdemeanor so the pillar of the c g a subsection a one does not cover misdemeanors at least certain kinds of misdemeanors and there have there has been a misdemeanor and go all the way up to the supreme p so that's at least one possibility and then the other possibility is someone can try to shoehorn into nine hundred fifteen if they're denied under the c j that's going to be unlikely because the chances of you not being able to afford coun so i wanted to go back to the text of section one nine hundred fifteen a and just point out that the words fees and security are used in two places in that provision first in the phrase without premade pre payment a fuse or security  second in the phrase unable to pay such fees or give security now of course that second reference is to the affidavit that a litigant has to file a litigant doesn't know what kind of partial fee is going to be imposed on them that second such i'm not sure why why cuts one way or the other i'm not going to get hurt you but i'm not sure why it favors you so the affidavit has to be filed before the court rules so the only thing and iligan can say is that i can't pay the entire fee right in the district court judge looks at this and says i get part of what you're saying but i don't agree in full gram part well i think it's because the such fees and the word fees it's the same feel it's the total fee and if you go all the way back to the eight hundred ninety two statute it does use the phrase the costs in the phrase give security for the same so if you go all the way back i think it's clear congress first referring to the total we just want to give you a chance to make your thing but i just wanted to i had not thought about this back and may statutes about cos is he correct because it sounded correct to me that when you assess cos it is an all or nothing at all and so you have lots of statutes that you know cos and that's quite discretionary at the back end of news and that suggestive of discretion at the front end particularly since they often are interrelated so how do you respond to that really that hasn't been briefed and there may be i caught my attention i hadn't thought of it so it didn't catch your attention so certainly we're looking at the text of this statute which is talking about the discretion determine whether iligan can pay the entire fee so to the extent that there are other statutes of dressings cost that may grant broader discretion that's not the text of the statute the second point i want to make is that we certainly have not conceded the appeal point with respect to all appeals so kinkaid explicitly states that the few requirements of the p l r re do not apply to cases or appeals brought under section twenty two fifty four and twenty two fifty five so this court certainly has made a ruling with respect to appeals in twenty two fifty four and twenty two fifty five cases the third point i wanted to make is the j issue also hasn't been briefed there may be situations where the c j doesn't apply such as where a prisoner waves counsel maybe there are other other exceptions that could be problematic and the third or fourth issue i want to raise the simply if this court allows the imposition of partial filing fees on haiti as petitioners it is sanctioning the creation of an ad hoc judicial scheme that is not provided for in the text of the statute and this court will have a lot of decisions to make so if you go back to the pre pay ellerey era the eighth circuit in williamson said christmas gifts should be excluded when prisoners when more terms me to go to be one well i think that be one clearly does not apply various stablish regimes the point i'm making everybody knows how to implement but then this court would be taking an established regime the congress explicitly decided not to apply and he is cases and apply it in hippias cases that's exactly what the supreme court said was inappropriate in the patsie case it said it was inappropriate for courts to take the exhaustion regime the congress had limited to prisoner suits and extended to all section one thousand nine hundred three cases even if that made sense as a policy matter but if the court has discretion and the regime of another statute makes sense why  is it why would it be to abuse of discretion to look at some other statute that actually has a rule well that rational reasonable structure to it so i think the question is when congress adopted this detailed scheme considered explicitly the issue of partial filing fees faith paid by prisoners at the same time and explicitly considered whether and how to decrease a fruitless and an meritorious hey b is filings and declined to do that this court should follow the statute that congress wrote and not invent its own right thank you thank you to all three of you for your helpful briefs and arguments i think at the time the last round of briefs were filed all three of you complicating the case even more with all of your excellent arguments we really appreciate it it's really helpful to us and we're really grateful so thanks to all three of you the case will be submitted in the curtain call the next case