good morning everyone i don't know if you all noticed in case you haven't they are filming right next to our building and avengers movie yesterday we were greeted with car burnings crash other things this is not our courts doing the city of atlanta has authorized this so i just wanted to make sure that if you hear any noises that's probably what it's going to be and i do apologize i don't know if there are any difficulties getting into the building with all that going on hope not but i just wanted to add that i also judged and i are very pleased to have sitting with us today judge richard goldberg as some of you my know we have a very busy court and we depend greatly on the services of visiting judges and judge goldberg has certainly given us a lot of service over the years he has a senior judge in the court of international trade in new york he's a native of north dakota and he sits with us quite a bit and very generous with his time and judge goldberg we're so appreciative have it back again he's a regular all right we'll bring out our first case not call the case of david charles lawsuits were dismissed on an enumerated ground prior to the filing of this instantly to geisha in two of those lawsuits were on appeal at the time he filed this installation those were eventually dismissed as well but if the that were pending appeal did not count as strikes defendants for a lie on the supreme court's opinion in harper for the proposition that the retroactive back to keisha coleman is required here i believe that reliance is misplaced i think it's important to acknowledge up front that harper has some broad language language to the effect that once the court that announces a rule applies it to the parties before it retro at the lower courts are required to give full retroactive effect to all  cases still open on director view respectfully i believe that this language is imprecise and can be read to overstate the principle for which harper truly stands at the question is not whether the court that announces the rule applies it to the parties before it but whether it retroactively applies it to the parties before it and that's consistent with the underlying reasoning of harper that we should treat similarly situated litigants the same it's uncontroversial that once glaser got it exactly right when judged to be a road that harper merely reiterated the rule that once a court retroactively applies a newly announced rule in one case the rule must be applied retroactively to all pending case how part of this rule or the prisoners that file frivolous litigation are tying up the court system in the prisons so you've got a guy that's got four two on appeal and we now know that that the district court erred if you don't know what the supreme court is go should've counted all four why would you let this fella stay in court when we now know for sure about a supreme court he lacking or he has more strikes even then he needs for the and that is an issue that we address also in this brief we believe that the way in which the district court disposed of the case it abused its discretion in doing so and effectively dismissed his substantive claims from prejudiced without allowing him an opportunity or at least considering whether a lesser sanction discretion to do so and we think in this case the equities would weigh in favor of that as you know not only was my client operating pro se below but also he was not given the the time provided to respond to defend its motion to dismiss when he asked to go i have he the magistrate judge didn't allow him to go temporarily the magistrate judge has now i'm sorry i'm going with the minority rule you've got all these cases i don't care if they're on appeal or not you're out and let's say then that later on you know the district court went along with that and we have firmed that ignore whether there's a column or not we have a firm that we would never and that's instance they will gee you guessed wrong guess you get to pay your filing fee we on fact our case law does it not indicates that when you make a mistake and asking for i have seen you arguably have three strikes you are out literally so what is his reliance what basis do you have to rely on the fact he might and if it's denied as in your example it's denied immediately within a few days or weeks as i understand it and so that dismissal would occur before he is taking time the or invested his time energy and effort to litigate in the words of the district court below said however i think that his understanding of law was incorrect or perhaps because he wasn't directly addressing that issue he may not have looked at it closely but the law in this circuit is that a strike accrued after the filing of the instant action analysis whether retroactive application will further or hinder the operation of the rule there been very start to kill ations of what the purpose of the rule is conserved judicial resources prevent abusive prisoner litigation but everyone seems to agree that the way it was intended to work was to provide an economic incentive to prisoner litigants to quote stop and think before they filed a lawsuit to understand that there were consequences well there is no reasonable argument mr mr sussman does not dispute that the coleman rule applies the finot of lead to any cases filed after that and it's important to consider that this is not going to open the floodgates of litigation as i mentioned the only the only cases t at the time he didn't currently have the funds necessary there it seems to me that there are certainly ways he could borrow the money you acquire the funds through other means without resorting or without necessarily perjuring himself with an affidavit or declaration he signed in two thousand and thirteen it may be difficult to do so and i don't know if he would be able to do so but i certainly think it's possible and i don't think the court should route you know should this court diligently litigated his claims to tell them you never should have been able to start in the first place i see my time is up and thank  good morning may please the court shane weaver or the attorney general's office for the defendant at bally's for hampton and marie bone dismissal of this action should be affirmed first because coleman versus tollefson had to be applied retroactive binding on all other courts including for those cases before and after that decision all court cases that were open on review during that time and there is no ability to decide that has sort of carved out a small exception i guess you could say that it's found that chevron oil survives to a very limited extent which is only when this court is the one announcing the new rule of law now that's not the case here  it was the supreme court announcing a new rule of law in coleman which means that the southern district of florida it had no discretion but to apply that the chevron oil test has been effectively overruled the supreme court has said that a couple of times including in one of the footnotes in a case that plaintiff is cited graff it's also mentioned in reynolds bill casket that rental casket company versus hired that it's been overruled to the extent that it allows selective prospect to vittie again the only exception would be that this glassner and can you versus paint were talks about chevron oil existing only in those situations where this court isn't is applying the new rule in the first instance which was not the case so let's assume you're right and let's assume y'all want to asking more about retroactive but assuming that you're right on the retroactivity is she seems an equally significant to applying to have is the fact that he would like to continue on with this lawsuit he would like to be able now to pay the filing fee and what is your response as to how one would allow him to even do that the statute appears to run and whether or not he should be allowed to do that if he's  for some ability to i guess if he's asking to reverse the dismissal then he's in effect saying he should be given some undefined alternate means of a guest a payment arrangement or leave to pay it none of that type of framework is anticipated by the p l o or a and it's ruled out by this court's precedent you know do previous parmer first of all the issue was not raised in the proceedings below it was not preserved  i believe in his reply brief states that he it was not raised because he did not have the opportunity to do so based on the fact the motion to dismiss was recommended to be granted i think only eight days after the motion was filed which if true still does not answer the fact that he did not file any objection he did not will he filed objections to that report recommendation but did not mention the potential for dismissal of prejudice at all he did not mention the fact that he only had eight days to respond at all then after the district court adopted the report recommendation full he also did not move for any kind of a reconsideration a rehearing of that issue so he did have the opportunity to raise this potential dismissal of prejudice but chose not to relieved to amend it specifically says that the filing fee for three straight inmate who files a lawsuit must pay the filing fee when the suit is brought there is not for example an exception that animate may not maintain the action or may not proceed with action it said he may not bring it which means it cannot be filed without he may not commence an action as an i have few little again if he has three strikes and line if would argue gee it seems awfully unfair when i thought i was properly before the court i've spent five noun and it seems unfair because of a later decision against me that i don't have a chance to make things right i guess there's two responses that you're on a first on a basic level invokes equity and fairness throughout the briefing this is a situation where an inmate has abused jail i'm sorry has abused court resources to the point where he's not allowed to equitable relief for or against whatever it is that he's seeking given his litigation history now the second part of that is that the this court has found that an inmate has no ability to pay the filing fee after the act of filing it began with that analysis and vandenberg versus donaldson where at first said that if the full filing fee must be paid at the time he initiate suit the court elaborated on that in two previous is palmer holding that a prisoner cannot simply pay the filing feet after being denied i have p status he must pay the filing fee at the time initiate suit now as far as it being ending up being a dismissal of prejudice because of that first there's not necessarily eight this court has found that inmate cannot file his grievances after commencing the lawsuit he must do it for much the same way he must have paid the filing fee at the time he commences the action now  honor you'd have situations for example where an inmate who knows he has no chance of being able to proceed with this action i have p a few files at any time during special limitations could wait until as close to the end of that limitations period as  so that by the time it comes up for a screening dismissal or a motion to dismiss he would be able to say but if this is dismissed i would not be able to proceed i would not be able to refile so i know and mates were being cursed try every time to get this mechanism because there'd be no downside if they that case filed his his action two days before a statute of limitations expired in one thousand days later the action was dismissed so again it wasn't part of the order but it should be noted that it was a dismissal of prejudice and  also the dismissal prejudice language that's not that's besides the exhaustion the administrative exhaustion section that's also sometimes appropriate in dismissals for filing false affidavits or otherwise acting includes mandatory shell dismissed language if an action is malicious so when this court was reviewing those decisions it was determining if the inmates action was in fact malicious it was not a situation where all parties in the court agreed that inmate had acted maliciously but if there's some way we can get around the statute in not have to dismiss it rather it found that it was not dismissed it was not malicious at all taking it out of that dismissal subsections ambit entirely  if there are situations where a court has discretion to apply sanction such as under rule forty one or rule eleven or under its inherent powers then sure the court may have more tools disposal it may have the ability to decide the dismissal of prejudice vs dismissal without prejudice but this is not that situation this is purely the ministerial application of the three strikes rule and it's plain language based on the objective fact that he had three strikes and when the court is interpreted the statute in that type of manner playing a statue in that type of manner it does not have discretion to carve out other exceptions or  to interpret the rule judicially that's only for congress to do and as i said if the court if the congress wanted to create other exceptions if it wanted to allow inmates to maintain actions it could have done so it specifically chose not to there is only one recognized exception to the to the requirement of paying the filing fee at the onset of the case and that is imminent danger which has nothing to do with this case it is not alleged and it is not a basis for the complaint but the point is that that's not what's happening here this is an issue of pure prospectivity and the reason is because the court in coleman did not apply the rule of law denounced retroactively to the parties before it and you can look  justice o'connor's dissent where she points out that any language that suggests that once a court applies a rule of law that rule of law must be given for retroactive effect in all pending cases open review  where the real question is whether the court that announced the rule applied it retroactively and that's and that's what the majority opinion does here the court and coleman did not apply the rule retroactively unlike mr sussman and mr coleman had his underlying reasoning whether we treat similarly situated against the same mr harper and mr sussman mr coleman are not similarly situated at least as it respects retroactive application because of that  retroactively to the parties before it addressing the issue of whether the district court disposed of this case improperly what we're asking for here your honour's is to vacate the district court's or reverse her for a bat we're affirming business missal if we went back and said well you should dismiss without prejudice that doesn't get you very far on statute of limitations what are we supposed to say she ruled correctly y fourteen days to pay their final untruth issue an order that and the idea that this never happens in the i don't think is exactly correct in fact in this case the magistrate judge denied his status without prejudice and allowed him to refile he didn't dismiss the complaint and force him grief father complaint he'd simply denied his motion for a piece to as and said refile with a more detailed financial affidavit so technically under the rules clever argument i new argument to get through he'll try to run with that as long as he can and when he loses he says well what the heck i get it get paid if he's concerned about that this kind of rule would have would really be inconsistent i think the response is i am not sure where the great benefit comes all we're asking for here is fourteen days to pay the fallen tree that i don't see the real benefit to the prisoner let it get to get an extra fourteen days of his lawsuit pending would which at the end of wh is forced to actually pay the filing fee this doesn't seem to me to be a flood of litigation that the court should be concerned about and mr johns i believe you were appointed by us is that correct yes you know you have done an outstanding job here kline and i know you're a busy lawyer see the firm you work with and i'm sure this took a lot of time out of your busy day and we really appreciate your service well it's always not to be here your honor thank you very much for your consideration and i thank you