United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued October 7, 2010 Decided February 22, 2011

No. 08-5440

IN RE: ROGEL GRANT,

PETITIONER

On Motion for Leave to Proceed

In Forma Pauperis

Petition for Writ of Mandamus

(No. 1:08cv0150)

Brian S. Scarbrough, appointed by the court, argued the

cause as amicus curiae in support of petitioner. With him on the

briefs was David W. DeBruin.

Alexander D. Shoaibi, Assistant U.S. Attorney, argued the

cause for respondent. With him on the brief were Ronald C.

Machen Jr., U.S. Attorney, and R. Craig Lawrence, Assistant

U.S. Attorney.

Before: GARLAND, Circuit Judge, and WILLIAMS and

RANDOLPH, Senior Circuit Judges.

Opinion of the Court filed by Senior Circuit Judge

RANDOLPH.
2

RANDOLPH, Senior Circuit Judge: A jury in the Eastern

District of Pennsylvania convicted Rogel Grant of two counts of

distributing crack cocaine and one count of possession of crack

cocaine with intent to distribute. The district court sentenced

Grant to life imprisonment. He is currently incarcerated at the

United States Penitentiary in Bruceton Mills, West Virginia. 

After his conviction, Grant brought a civil complaint in the

U.S. District Court for the District of Columbia against the

Attorney General of the United States, the U.S. Attorney for the

Eastern District of Pennsylvania and an Assistant U.S. Attorney

in the Eastern District alleging a conspiracy to deprive him of

his constitutional rights under the Fifth, Sixth and Fourteenth

Amendments during the prosecution of his criminal case. On its

own motion, the district court ordered Grant’s civil action

transferred to the U.S. District Court for the Eastern District of

Pennsylvania.

Grant filed a notice of appeal of the transfer order with the

district court pro se. The district court transmitted the notice to

this court. Because transfer orders are not appealable, see Ukiah

Adventist Hosp. v. FTC, 981 F.2d 543, 546 (D.C. Cir. 1992), we

ordered that Grant’s notice of appeal be construed as a petition

for writ of mandamus. The order also directed Grant to pay the

$450 docketing fee or to file a motion for leave to proceed in

forma pauperis pursuant to 28 U.S.C. § 1915(a). Grant filed the

motion. Our court referred it to the merits panel, appointed

counsel to serve as amicus curiae for him and instructed the

parties to address the question whether the filing-fee requirements of the Prison Litigation Reform Act (PLRA), 28 U.S.C.

§ 1915(b), apply to petitions for writs of mandamus.

Under 28 U.S.C. § 1915(a), “any court of the United States

may authorize the commencement, prosecution or defense of

any suit, action or proceeding, civil or criminal, or appeal
3

therein, without prepayment of fees or security therefor” by a

person who demonstrates through an affidavit his inability to

pay such fees or give security therefor. 28 U.S.C. § 1915(a)(1).1

1

 28 U.S.C. § 1915 provides in relevant part: 

(a)(1) Subject to subsection (b), any court of the

United States may authorize the commencement,

prosecution or defense of any suit, action or

proceeding, civil or criminal, or appeal therein,

without prepayment of fees or security therefor, by a

person who submits an affidavit that includes a

statement of all assets such prisoner possesses that

the person is unable to pay such fees or give security

therefor. Such affidavit shall state the nature of the

action, defense or appeal and affiant’s belief that the

person is entitled to redress.

(2) A prisoner seeking to bring a civil action or

appeal a judgment in a civil action or proceeding

without prepayment of fees or security therefor, in

addition to filing the affidavit filed under paragraph

(1), shall submit a certified copy of the trust fund

account statement (or institutional equivalent) for the

prisoner for the 6-month period immediately

preceding the filing of the complaint or notice of

appeal, obtained from the appropriate official of each

prison at which the prisoner is or was confined. 

(3) An appeal may not be taken in forma pauperis if

the trial court certifies in writing that it is not taken in

good faith. 

(b)(1) Notwithstanding subsection (a), 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. The court shall assess and,
4

Proceedings authorized under this and similar provisions are

said to be in forma pauperis. The origins of the statute reach

back at least as far as 1892, Law of July 20, 1892, ch. 209, 27

Stat. 252, and the origins of the practice further still, see 1

when funds exist, collect, as a partial payment of any

court fees required by law, an initial partial filing fee

of 20 percent of the greater of—

(A) the average monthly deposits to the

prisoner’s account; or 

(B) the average monthly balance in the prisoner’s

account for the 6-month period immediately

preceding the filing of the complaint or notice of

appeal. 

(2) After payment of the initial partial filing fee, the

prisoner shall be required to make monthly payments

of 20 percent of the preceding month’s income

credited to the prisoner’s account. The agency

having custody of the prisoner shall forward

payments from the prisoner’s account to the clerk of

the court each time the amount in the account exceeds

$10 until the filing fees are paid. 

(3) In no event shall the filing fee collected exceed

the amount of fees permitted by statute for the

commencement of a civil action or an appeal of a

civil action or criminal judgment.

(4) In no event shall a prisoner be prohibited from

bringing a civil action or appealing a civil or criminal

judgment for the reason that the prisoner has no

assets and no means by which to pay the initial partial

filing fee.
5

ROGER FOSTER, A TREATISE ON FEDERAL PRACTICE IN CIVIL

CAUSES § 200 (1892).

In 1996, in the wake of a nearly six-fold increase in due

process and cruel and unusual punishment prisoner complaints

from 1975 to 1994, Congress amended § 1915 to impose

additional obligations on prisoners seeking to proceed in forma

pauperis. Subsection (b) now states 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.” 28

U.S.C. § 1915(b)(1). The subsection creates a payment schedule

including prepayment of a portion of the fee, but provides that

“[i]n no event shall a prisoner be prohibited from bringing a

civil action or appealing a civil or criminal judgment for the

reason that the prisoner has no assets and no means by which to

pay the initial partial filing fee.” Id. § 1915(b)(2)–(4).

The courts of appeals are divided about whether (and how)

the requirements of subsection (b) apply to petitions for writs of

mandamus.2

 The closest this court has come to addressing the

question in a published opinion was In re Smith, where we held

that the filing fee requirements apply to “a petition for a writ of

2 Compare In re Stone, 118 F.3d 1032, 1034 (5th Cir. 1997)

(requirements apply to mandamus petitions only when the underlying

action is civil), Martin v. United States, 96 F.3d 853, 854-55 (7th Cir.

1996) (same), In re Tyler, 110 F.3d 528, 529 (8th Cir. 1997)

(requirements apply at least to petitions arising from “ongoing civil

rights lawsuit[s]”), and Green v. Nottingham, 90 F.3d 415, 418 (10th

Cir. 1996) (requirements apply to all mandamus petitions), with In re

Nagy, 89 F.3d 115, 117 n.2 (2d Cir. 1996) (requirements only apply

to petitions that are simply “alternative device[s]” for obtaining the

relief sought in civil actions), and Madden v. Myers, 102 F.3d 74, 78

(3d Cir. 1996) (requirements do not apply to “bona fide mandamus

petitions”).
6

prohibition that . . . includes underlying claims that are civil in

nature.” 114 F.3d 1247, 1250 (D.C. Cir. 1997).3

Now that the question is directly before us, we hold that the

filing-fee requirements of the PLRA apply to a petition for a

writ of mandamus filed in connection with a civil proceeding in

the district court. We agree with the Seventh Circuit that a

mandamus petition in such a case “is realistically a form of

interlocutory appeal.” Martin, 96 F.3d at 854. Grant’s petition

began as a notice of appeal of the transfer order in his underlying civil action. It was only by order of this court that it was

restyled a petition for a writ of mandamus. Our jurisdiction over

an action in the district court is “exclusively appellate.” Roche

v. Evaporated Milk Ass’n, 319 U.S. 21, 25 (1943). And our

authority to issue writs of mandamus in connection with such

actions is restricted to those that are “in aid of [our] appellate

jurisdiction.” Cheney v. U.S. District Court, 542 U.S. 367, 380

(2004) (quoting Roche, 319 U.S. at 26). 

Even if we were to treat Grant’s mandamus petition as

initiating a separate proceeding, distinct from the underlying

civil action, the filing-fee requirements would still apply

because the new proceeding would itself be a “civil action.” Cf.

3

 The writ of prohibition and the writ of mandamus were both

common law prerogative writs. The writ of prohibition “was directed

to a judge, and it ordered him to cease trial of a case or to cease certain

actions in it.” DAN B. DOBBS, REMEDIES § 2.11, at 112 (1973). The

writ of mandamus was broader. “It orders a person, usually some

official of the executive branch of the government, or the judge of a

lower court, to carry out some affirmative action.” Ibid. The courts

of appeals are authorized to issue these writs and any other writs

“necessary or appropriate in aid of their respective jurisdictions and

agreeable to the usages and principles of law.” 28 U.S.C. § 1651(a).
7

In re Grand Jury Subpoena Duces Tecum, 775 F.2d 499, 503

(2d Cir. 1985).

Applying the filing-fee requirements to petitions for writs

of mandamus in civil cases furthers the purpose of the Act to

“reduce frivolous prisoner litigation by making all prisoners

seeking to bring lawsuits and appeals feel the deterrent effect

created by liability for filing fees.” In re Smith, 114 F.3d at

1249 (quoting Leonard v. Lacy, 88 F.3d 181, 185 (2d Cir.

1996)); see also In re Nagy, 89 F.3d at 117. Like frivolous

complaints in the district court, frivolous petitions in the courts

of appeal “tie up the courts, waste valuable judicial and legal

resources, and affect the quality of justice enjoyed by the lawabiding population.” 114 Cong. Rec. 14571 (May 25, 1995)

(statement of Sen. Dole).

In seeking appellate review of the district court’s order

transferring his civil action, Grant therefore “brings a civil

action or files an appeal” within the meaning of § 1915(b). If he

wishes to proceed, he must comply with the requirements of the

PLRA.4

Amicus counsel for Grant relies on nine unpublished orders

we issued between 2005 and 2008 dealing not with § 1915(b)

but with an analogous provision in § 1915(g).5

 Some of the

4

 Because Grant’s mandamus petition stems from a civil

proceeding, we express no opinion on whether the filing-fee

requirements of the PLRA apply to petitions for writs of mandamus

when the underlying proceedings are criminal or concern an

application for a writ of habeas corpus. Compare, e.g., In re Nagy, 89

F.3d at 116, with Green, 90 F.3d at 416-18. 

5

 Section 1915(g) states that a prisoner shall not “bring a civil

action or appeal a judgment in a civil action or proceeding” in forma

pauperis if he has had three or more previous actions or appeals
8

orders state that § 1915(g) does not apply to “a true mandamus

petition.” Chandler v. Dep’t of Justice, No. 07-5244, 2007 U.S.

App. LEXIS 24657, at *1 (D.C. Cir. Oct. 19, 2007); In re Tyler,

No. 05-5034, 2005 U.S. App. LEXIS 8912, at *1 (D.C. Cir. May

17, 2005); In re Ibrahim, No. 04-5435, 2005 U.S. App. LEXIS

8908, at *1 (D.C. Cir. May 17, 2005). Others say that the

prisoner’s ineligibility to proceed in forma pauperis does not

“extend” or “apply” “to petitioner’s mandamus petition.” In re

Perea, No. 08-5399, 2008 U.S. App. LEXIS 24139, at *1 (D.C.

Cir. Nov. 21, 2008); In re Chandler, No. 07-5405, 2008 U.S.

App. LEXIS 9094, at *1-*2 (D.C. Cir. Apr. 17, 2008); In re

Veteto, No. 06-5153, 2006 U.S. App. LEXIS 20284, at *1 (D.C.

Cir. Aug. 4, 2006); In re Judd, No. 06-5045, 2006 U.S. App.

LEXIS 16016, at *1 (D.C. Cir. June 22, 2006); In re Demos, No.

06-5096, 2006 U.S. App. LEXIS 16023, at *1 (D.C. Cir. June

22, 2006). All of the orders are in the form of summary

dispositions, consisting only of three or four short paragraphs. 

All were issued without oral argument. In each order the only

authority cited is In re Smith, 114 F.3d at 1150, which—as we

have said—held that a “petition for a writ of prohibition” was

within the PLRA’s filing-fee requirements and recognized that

other circuits had ruled the same for mandamus petitions

“predicated on underlying civil claims.” In other words, Smith

seems consistent with our holding today but inconsistent with

the conclusion for which the orders cite it. 

Since 2007, the Federal Rules of Appellate Procedure have

permitted litigants to cite unpublished opinions and orders

issued on or after January 1, 2007. FED. R. APP. P. 32.1. Our

local rule, adopted earlier, permits the parties to cite “as precedismissed on grounds that it was “frivolous, malicious, or fails to state

a claim upon which relief may be granted, unless the prisoner is under

imminent danger of serious physical injury.” 28 U.S.C. § 1915(g).
9

dent” such dispositions entered on or after January 1, 2002. 

D.C. CIR. R. 32.1.6 Another local rule states that “a panel’s

decision to issue an unpublished disposition means that the

panel sees no precedential value in that disposition.” D.C. CIR.

R. 36(e)(2). Neither our local rules nor the national rule

specifies what effect future panels should give to unpublished

orders and judgments.7

The law-of-the-circuit doctrine means that “the same issue

presented in a later case in the same court should lead to the

same result” and that “[o]ne three judge panel . . . does not have

the authority to overrule another three-judge panel of the court.” 

LaShawn v. Barry, 87 F.3d 1389, 1393, 1395 (D.C. Cir. 1996)

(en banc). Our court has not determined how this doctrine

applies to unpublished dispositions—unpublished because the

panel concluded that order or memorandum would have no

precedential effect. Most other circuits have decided, in local

rules, that unpublished orders or opinions do not have binding

precedential effect. See 1ST CIR. R. 32.1; 2D CIR. R. 32.1; 4TH

CIR. R. 32.1; 7TH CIR. R. 32.1; 8TH CIR. R. 32.1; 9TH CIR.

R. 36.3; 10TH CIR.R. 32.1; 11TH CIR.R. 36.2; FED.CIR.R. 32.1. 

But see 5TH CIR. R. 47.5; Weaver v. Ingalls Shipbuilding, Inc.,

282 F.3d 357, 359 & n.3 (5th Cir. 2002).

6

 Referring to these dispositions as “unpublished” has become a

misnomer. As many as eighty-percent of these “unpublished”

dispositions are now published in the Federal Appendix or available

online. See Scott E. Gant, Missing the Forest for a Tree: Unpublished Opinions and New Federal Rule of Appellate Procedure 32.1,

47 B.C. L. REV. 705, 709 (2006).

7

 The advisory committee notes to Rule 32.1 explain that the rule

“says nothing about what effect a court must give to one of its

unpublished opinions or to the unpublished opinions of another court.”
10

Although our circuit does not have a local rule directly on

point, we agree that unpublished dispositions should not strictly

bind panels of the court. In our view, the weight afforded an

unpublished disposition of this court should be similar to that

which the Supreme Court grants to its own dismissals “for want

of a substantial federal question” or summary affirmances.8

While these dispositions have some precedential value, they are

“obviously . . . not of the same precedential value as would be

an opinion of this Court treating the question on the merits.” 

Edelman v. Jordan, 415 U.S. 651, 671 (1974). Like the Supreme Court’s summary dispositions, unpublished opinions and

judgments of this court are often entered without oral argument. 

See D.C. CIR. R. 34(j); SUP. CT. R. 18. And because the panel

issuing such a disposition must unanimously agree that it does

not “alter[], modif[y], or significantly clarif[y] a rule of law,”

D.C. CIR. R. 36(2), these decisions are frequently announced in

a way that makes them not “suitable for governing future cases.” 

Hart v. Massanari, 266 F.3d 1155, 1178 (9th Cir. 2001); see

Colo. Springs Amusements, Ltd. v. Rizzo, 428 U.S. 913, 919

(1976) (Brennan, J., dissenting from denial of certiorari). For

these reasons, unpublished orders like those the amicus cites

may be considered persuasive authority, but they do not

constrain a panel of the court from reaching a contrary conclusion in a published opinion after full consideration of the issue.

8

 Before the elimination of the Supreme Court’s appellate

jurisdiction over state court judgments, the Court summarily disposed

of such cases by stating that the appeal was dismissed “for want of a

substantial federal question.” GRESSMAN ET AL., SUPREME COURT

PRACTICE 365 (9th ed. 2007). This was the equivalent of a decision

on the merits affirming the state court’s judgment on the federal

question. Hicks v. Miranda, 422 U.S. 332, 344 (1975). But see

ALEXANDER M.BICKEL, THE LEAST DANGEROUS BRANCH 126 (2d ed.

1986) (calling “want of a substantial federal question” as a reason for

dismissal “pure fiction”). 
11

We therefore hold that prisoners filing petitions for mandamus in civil cases must comply with the filing-fee requirements

of the PLRA. When Grant submits the required materials, his

liability for the PLRA fees under § 1915(b) will be calculated,

and he must pay that amount as provided by further order of the

court. If Grant does not file the requisite materials with the

court within thirty days, his petition will be dismissed.

So ordered.