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.

_______________________________________________

Appeal from the United States District Court

For the Southern District of Texas

_______________________________________________

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 circ uit regarding new i n 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 district1 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. L eonard v.

Lacy , 88 F.3d 181, 184 (2d Cir. 1996).

-2- court, the President signed into law the Prison Litigation Reform

Act, P. L. No. 104-207, 110 S tat. 1321 (1996) (“PLRA” or “Act”),

which modified several statutes governing Jackson’s appeal. Soon

after the enactmen t 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., “th e party may proceed without

further application to the court of appeals and without prepayment

of fees or co s ts 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.-3- 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

Jackso n 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 li tigation 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-4-

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.” S ibbach

, 312 U.S. at 15, 61 S. Ct. at 427. Although

Congress has authorized the Cou rt to exercise some legislative

authority to regulate the courts, Congress at all times maintains

the power to repeal, amen d, 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), a ff’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 t ime amend or abridge by statute the Federal

Rules of Civil Procedure, Rules of Appellate Procedure, R ules of

Evidence, or other federal procedural rules promulgated under the

Rules Enabling Act. H awkins 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 have3 Another good reason not to read the abrogation clause to nullify

provisions of t he 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 th e 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. T o avoid such a dra stic result, we will not construe the

abrogation clause to dictate that Rule 24(a) invalidates Congress’s subsequent

amendments of i.f.p. procedure.

-5- taken effect.” 28 U.S.C. § 2072(b). On its face, this so-called

“abrogation clause” seems to invalidate all federal statutes “in

c onflict” 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 tru mp only statutes

passed before the effective date of the rule in question. P enfield

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.”); Not e, 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.”). 3-6-

By con trast, 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. A utoskill 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 R ules 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 Ma rch 10, 1986 (effective July 1, 1986). Therefore under the

conven tional 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). S ee 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 giv e 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-7-

govern the same procedure governing i.f.p. appeals.

It is hornbook law that “repeals by implication are not

favored.” C rawford 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. S ee

, 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.

Severa l equitable considerations persuade us not to dismiss-8-

Jac kson’s appeal altogether. First, the district court decided

this case after the PLRA beca me 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. C ompare R. at 14 (Jackson’ s

petition to proceed i.f.p. in dis trict court) w ith 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)

r equirement 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 th at 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. S ee

Covino v. Reopel

, 89 F.3d 105, 108-09 (2d Cir. 1996) (applying PLRA

and giving plaintiffs 30 days to meet statutory requirements).-9- 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 ci ted above, we hold that, to the

extent that Rule 24 w ould 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); M artin 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 f rustrate Congress’s purpose in amending section

1915(b). The fee provisions of the PLRA were designed to deter

frivolous prisone r litigation in the courts “by making all

prisoners seeking to bring lawsuits or appeals feel the deterrent-10-

effect created by liability for filing fees.” L eonard

, 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 appea l i.f.p., we will

assess and collect the filing fee from Jackson’s account, subject

to the repayment provisions of section 1915(b). S ee 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

h e decide to proceed with his appeal, we will assess filing fees

under the amended provisions of the Act.

IT IS SO ORDERED.