Legal Case Summary

Thank you and good morning everyone and welcome to our newly refurbished courtroom. We can get started with our first case and understand everyone is here. Bird versus Shannon. Miss Trella. Good morning Your Honors. May it please the court. My name is Rebecca Trella and I serve as a court. I'm from the court. My co-concil, Alex Gowlin, will address why unclear dismissals are not strikes under 1915. But the court's permission I'd like to reserve two minutes for rebuttal. Thank you. Put simply, the paid complaints are not strikes under 1915. Because Congress never intended for them to be strikes. The legislative testimony behind the PLRA shows that Congress was focused on prisoner abuse of the IFP privilege. To address this problem, Congress passed 1915 G, which is a special remedy aimed at limiting indigent prisoners' access to free lawsuits. Do you acknowledge that looking at 1915 G and it's looking at it at least in isolation ways in that way? No, Your Honor

. Our position is that the statutory language isn't clear either way. The phrase we're talking about is an action. And the phrase an action appears several times in the PLRA. Sometimes as in 1997 E in 1915 A, it includes all complaints, be paid an IFP. And sometimes as in 1915 E, it includes only IFP complaints. So we're here asking the court to determine whether it's more like 1997 E in 1915 A. The seven circuit seems to run directly against the argument that you're making. At least in Duval versus Miller, the seven circuit found that the statutory language of 1915 G to be clear, noting that inmates who have brought an action on the PL and does not say brought an action or appeal in form of a chorus. And in that case, the court concluded that the prisoner who had brought three suits, that lacks sufficient merit to get beyond the pleadings, were subject to the three-spot rule. So it doesn't matter whether it's in form of a chorus or whether the complaint is paid for according to the text of the statute as it should shatter. That's right that the seven circuit concluded that the language is plain on its face. But our position is that it's not plain on its face because of these differing interpretations elsewhere in the PLRA. Would not be a rewriting of the statute. No, Your Honor, it would not. Our position is that the conclusion in Duval was cursory at best

. The court ignored that the law had been interpreted different ways elsewhere in the PLRA. And moreover, in deciding Duval, the court was looking to the precedent of row which had decided that 1915 E was not limited to IFP. The seven circuit has since decided differently in Gladney, which is congruent with this circuit's decision in Grayson, limiting 1915 E to IFP and creating that tension within the statute of the differing interpretations. Same, the same binding in Highland, the six circuit found in Duval, the six circuit found in Highland versus Clayton. Where it found that it didn't matter whether the complaint or the actions paid or not. But it still counted as a restructuring. You distinguish those two cases from your position? Yes, Your Honor. In fact, we distinguish all three cases. Duval, the published case as well as Highland and Berghardt, the tenth circuit case. As all being cursory examinations of the law that did not look to the ambiguity inherent in the statute. It does seem like the weight of jurisprudence is running directly against you. It seems like that. What is your best case for the position that you take? Grayson. This court's decision in Grayson noted that the phrase in action, which had been previously considered in Santana, was at first blush not dispositive and that based on the structural component of the law, as well as the legislative history behind the law, that it was in as in 1915 E, limited to IFP complaints. Probably with Grayson, no, it applied to another section

. That's right. And that's the section most analogous to the section we're considering today. Isn't the weakness of your argument about that section, the fact that that section specifically deals with screening IFP complaints? Our position is that that's not a weakness at all. 1915 G uses language that's essentially a copy and paste job from 1915 E. It uses the phrase frivolous malicious or failure to state a claim upon which relief may be granted. Moreover, the structure of the penalty itself reinforces the notion that the provision is limited to IFP. The penalty is not cutting off access to the docket at all. The penalty is lack of access to the IFP process. For somebody who's paying their own way for their own complaints, not having access to the IFP privilege doesn't really matter. It won't affect. Well, that's a good policy, that's a good policy argument if you're looking to create a statute. But as Judge Fisher mentioned, in Grayson, they are only dealing with IFP. So instead of went beyond IFP, non-IFP filings, it's Dicta. There's not, they didn't have to, that's Dicta that you're relying on in Grayson. In any case, in any circuit, here in CIPL, which held that it excludes non-IFP filings

. No, Your Honor, there has not been a specific case on point in another circuit. Why should we go off pioneering, so to speak? We're asking the Court to take a closer look at the word action, as determined in this case, then was determined in other circuits, maybe where the issues weren't as fully briefed by Proce litigants. Here we're asking the Court to recognize that this circuit has created a different interpretation of the word action in different parts of the PLRA. If the text of the statute doesn't result of the issue for you or you urge us to look at the meaning of the word action, how about the purpose of the statute? How about the purpose of 19G? And that was afforded by Berghard versus Kaur's Corporation. And it held that the goals of Section 9, 1915G to achieve and curtail the abusive prisoner toward civil rights and conditions litigation and preserving judicial resources. Now, in that way, what difference does it make whether it complains it's paper not paper? Well, Your Honor, this Court has determined in Abdul Akbar that there's a causational relationship between the flood of litigation that has come from prisoners since the 1970s and access to the IFP. Congress concluded in this Court noted that the reason the federal docket is flooded with prisoner litigation is because indigent prisoners have ready access to that IFP privilege. They have a different set of incentives, whereas the filing fee will slow down the fee paid prisoner. It sounds like if you pay for a complaint, it has more merit than if you don't, based on your argument. Based on the quote that I read to you, it didn't seem to make any difference in terms of what Congress sought in acting in 1915G, which is the cut down abusive litigation. Respectfully, Your Honor, that's a tenth circuit case it's not binding on this Court, and this Court's logic in Abdul Akbar, as well as the findings in the fourth circuit in roller, the fifth circuit in Addipigman, the ninth circuit in Andrews V. Servantes, is more persuasive. They pick up on that testimony of the Bill's co-sponsor, Senator Kyle and Senator Doyle, that IFP prisoners have no economic downside to filing, whereas somebody who pays for their own complaint must, in the words of Senator Kyle, thank twice. To determine if that lawsuit is worth the price. Well, Senator Doyle also said that prisoners will litigate at the drop of the hat, simply because they have little to lose and everything to gain

. So you could argue that really his intention is expressed by those words, or was to reduce for a blue litigation, whether it was paid for or whether it was IFP. That's right, Your Honor. We do agree that Congress's intent was to reduce for a blue litigation, but we can see by the remedy that they crafted cutting off access to the IFP provision that it's aimed at IFP filers. But why should we rely on statements from Senator's goal and Kyle? I just got done finishing reading Justice Scalia's book on statutory interpretation, and he questions never to, you look at the statute, you don't go with all the so-called tools that we were all taught in law school as to what the statute needs. You just look at the words, and especially since neither of them dealt specifically with the very issue as he's before this panel. Why should we go for something like that? Well, Your Honor, that's right that you only have to look at the words if the words themselves are clear. But in this case, the word action isn't clear, and so we must look to tools beyond that which are found in the statute. We look to the structure, we look to the neighboring sentences, and we look to what happened when the bill was passed. Now here, what is an action? What is an action, a civil action or an action? What is an action? How do you define it? I call on action a civil lawsuit, but this court has already carved out habeas actions which are technically civil actions, but not action. I'm sorry, Your Honor, I see my time is up there. So the word action means civil lawsuit, but in this context, in the PLRA, it may not include all civil actions, and that is our position. Because the language is not clear, because the neighboring sentences, the structure of the penalty and the congressional testimony, support a finding that IFP actions are alone included in the word action in 1915. G, we urge this court to find that VP complaints are not strikes. Thank you, Ed. I'm always tempted to take a little peek at what Congress went

. Once you've already been justicefully, help cheat. It seems like your argument seems to favor those who can afford to pay for complaints versus those who cannot, doesn't it? In other words, if you can afford to pay for a complaint, it doesn't count as a strike. But if you cannot pay for a complaint and you go IFP, then it does count as a strike. Well, these are two separate tracks of prisoners. There's no favoring. On the one side, if you can pay for your complaint, then that fee itself serves as an economic disincentive to file abusively, whereas if you're an IFP filer, the specter of strikes serves as the disincentive there. In the Congress, the court can reach out to fee paid filers and sanction them with monetary sanctions or stop them from abusive filing. Should that become a problem? Whereas a monetary sanction doesn't matter to an IFP filer because if you impose sanctions against them, they may not have any money to pay it anyway. That's why strikes are the appropriate remedy for the IFP filer and fees and sanctions are the appropriate remedy for the fee paid filer. Thank you very much. Thank you very much. Ms. Scanlon. Good morning, Your Honours and may I please the court. My name is Alexandra Scanlon and I will be arguing that Birdby Gillis is not a strike because it was dismissed in part on the non-strike grant community and because the court did not expressly label the appeal as frivolous

. Why should we follow our well reasoned language in racing? The reason here is that a dismissal as this court did without merit and pursuant to 1915 E2B is unclear because the court did not expressly find that the dismissal was frivolous, malicious or failed to state a claim. Further, we know that Birdby Gillis was dismissed in part on the non-strike grant of immunity which is the fourth classification of dismissals permitted under 1915 E2B. Mr. Bird filed three types of claims, state law claims that were dismissed as an 11th immunity grounds, federal 1983 claims that were dismissed because he failed to exhaust his administrative remedies under 1970 and lastly due process claims that were precluded by Sandin V. Connor. Well, one way of interpreting a statute is where it's found. And why should we limit the 1915 E2B in form of porpoise because it's it's right in the proceedings in form of porpoise statute itself in form of porpoise? As my co-counsel had explained in the original portion of our argument, we should not limit 1915 E2B in form of porpoise complaints in light of the statutory structure, congressional testimony and this court's instruction in Grayson. However, I'm here arguing today that Birdby Gillis is not a strike and that regardless of what this court finds, whether IFP or VP complaints, counter strikes, Mr. Bird has not accrued to strikes because the third strike, the potential strike that this court had identified in its order, expanding the scope of our representation, was Birdby Gillis. What's your best case to support your position? The best case to support our decision is Thompson. Thompson is instructive that if there is that a 1915 E2B dismissal is not a presumptive strike. What was Gillis the basis for dismissal in Gillis? The basis for dismissing Gillis, like I said, your honor was that he had three claims. Do process claims were dismissed under Sandin V. Connor? His federal claims were dismissed because he failed to exhaust his administrative remedies under 1997 E and Mr. Bird's state law claims were dismissed on 11th Amendment immunity grounds

. There were no language there about dismissal because of failure to state a claim or because the... The magistrate... The magistrate judge had found those substantive reasons for dismissing his claims. Mr. Bird appealed to this court, which dismissed the action as, and I quote, without merit and pursuant to 1915 E2B. Can we deem the failure to exhaust administrative remedies as filing a meritless, baseless perhaps even the frivolous complaint? Absent and expressed finding of such the seventh circuit has instructed in Harvey V. Lemmon that we cannot read into a dismissal, a ground for dismissal that was not stated, especially when it interferes with the prisoner's ability to file a lawsuit. I see my time is up here on this. Thank you for the questions. Thank you very much. Thank you

. Thank you. Mr. Daurian. My name is Raymond Daurian with the Ulstead Chief Counsel for the Pennsylvania Department of Corrections. And I'm here to argue on the three strikes, interpretations solely. I will not address the merits of the underlying case. Basically, the statute is clear. The plain language should be applied in this case. There's no limitation on what is a dismissal or strike under 1915 G. And the courts should not impose such a limitation where none exists. Well, 10th Circuit didn't find that clear in the Gennings. Yes, Your Honor. But I believe the weight of the circuits, the DuBao case, the Berghard case, and the Highland case, all three have very persuasive language. And including Judge J. Posner wrote that even though in theory, someone had paid the fee, would most likely have more seriously considered before he filed, there's nothing in the statute itself to warrant such an interpretation

. I don't mean down my gracious, though. No, Grayson, I believe is not on point at all, Your Honor. Grayson had to do with whether or not the trial courts should grant leave to amend under the PL or PL. What about Santana? The Santana case that had to do with what is an action, whether a habeas corpus proceedings constitute an action under the three strikes provision. That I put it to you was fact specific to what is a habeas, a habeas corpus, conditions are unique. We have all the time. We eat the court list on the civil docket. Yes, Your Honor. But the civil docket, not a criminal, and are called civil actions. Well, there's sort of a hybrid action as they see in the, in the civil action. There's no criminal involvement at all. It's really a civil action. Well, it's convicted, he's guilty. And he comes in for a civil action to be found, you should be released for civil purposes. Well, it's a tack on the legitimacy of the criminal sense. But anyway, the Congress didn't say in the statute except for hybrid action. That's correct, Your Honor. And I put it to you that the Santana case is specific to the unique situation of what is a habeas corpus. And also they point out that there was a, yeah, but doesn't at least got against your argument that the statute is clear. Your Honor, that to that particular stat, yes. But what the, what the, the appellance would have this court do is to read into this particular statute, this particular section, 1915G, a limitation was not there. And now the courts, the courts have indicated they will not read into 1915G, what caught additional grounds for what constitutes a strike. So I put it to you, you should not read into limitations as to what's, what's a strike. And they, they've pointed, they've talked about the effect and the intent of Congress, the effect of these frillous lawsuits. I put you that a frillous lawsuit is a frillous lawsuit whether it's filed by someone that paid the fee or someone did not pay the fee. Cut the, so we have a district court of so many tools to deal with frivolous lawsuits and frivolous motions that the frivolity in the district court out was dealt with through a number of mechanisms which you don't need any statutes to deal with it already. Now I agree you're under that the courts have inherent power to control their dockets into sanction. So what do you need this for if you get already deal with it? This is putting a blanket over a band that's already, but have a blanket over the already dead. This is a non-issue frivolous lawsuit. Well, you honor if you take that position, I guess we should throw the whole prison litigation reform back out the window

. But anyway, the Congress didn't say in the statute except for hybrid action. That's correct, Your Honor. And I put it to you that the Santana case is specific to the unique situation of what is a habeas corpus. And also they point out that there was a, yeah, but doesn't at least got against your argument that the statute is clear. Your Honor, that to that particular stat, yes. But what the, what the, the appellance would have this court do is to read into this particular statute, this particular section, 1915G, a limitation was not there. And now the courts, the courts have indicated they will not read into 1915G, what caught additional grounds for what constitutes a strike. So I put it to you, you should not read into limitations as to what's, what's a strike. And they, they've pointed, they've talked about the effect and the intent of Congress, the effect of these frillous lawsuits. I put you that a frillous lawsuit is a frillous lawsuit whether it's filed by someone that paid the fee or someone did not pay the fee. Cut the, so we have a district court of so many tools to deal with frivolous lawsuits and frivolous motions that the frivolity in the district court out was dealt with through a number of mechanisms which you don't need any statutes to deal with it already. Now I agree you're under that the courts have inherent power to control their dockets into sanction. So what do you need this for if you get already deal with it? This is putting a blanket over a band that's already, but have a blanket over the already dead. This is a non-issue frivolous lawsuit. Well, you honor if you take that position, I guess we should throw the whole prison litigation reform back out the window. But the Congress deemed that it was a special enough problem that they needed to issue this statute and I believe it should be given the full effect that was intended by Congress. They do not attend to just attack a certain number of frivolous filers, but they intended to deal with both those who paid and do not pay. Now the other side of the Amicus Council is cherry-pecked very quotations from the Congressional record. Frankly, the Congressional record is very splarse on this issue. There's no statement in it that says strikes. You don't even want to get there. Our position is that under the plain language of the statute there's no need to look at the Congressional record. What about the Bird V. Gillis question? On that issue, I believe the court specifically said in their opinion the third circuit that this appeal was without merit and was being dismissed pursuant to 1950. Without merit is it too big? Without merit, you said let's talk at the statute, but without merit is it listed as one of the three categories for strike in the 1950s. Well, it says frivolous, malicious, and failure state of quiet. I understand those, but I don't understand without merit is being basis for strike. Well, I will put to you your honor that the failure state of claim is based on the 12b6 and that has to do with the trial court level and complaints. I would say analogous to that on the appeal of the public court level will be saying that the appeal was without merit. I don't know that

. But the Congress deemed that it was a special enough problem that they needed to issue this statute and I believe it should be given the full effect that was intended by Congress. They do not attend to just attack a certain number of frivolous filers, but they intended to deal with both those who paid and do not pay. Now the other side of the Amicus Council is cherry-pecked very quotations from the Congressional record. Frankly, the Congressional record is very splarse on this issue. There's no statement in it that says strikes. You don't even want to get there. Our position is that under the plain language of the statute there's no need to look at the Congressional record. What about the Bird V. Gillis question? On that issue, I believe the court specifically said in their opinion the third circuit that this appeal was without merit and was being dismissed pursuant to 1950. Without merit is it too big? Without merit, you said let's talk at the statute, but without merit is it listed as one of the three categories for strike in the 1950s. Well, it says frivolous, malicious, and failure state of quiet. I understand those, but I don't understand without merit is being basis for strike. Well, I will put to you your honor that the failure state of claim is based on the 12b6 and that has to do with the trial court level and complaints. I would say analogous to that on the appeal of the public court level will be saying that the appeal was without merit. I don't know that. That's necessarily true. You may have a good case and I can reason my way through your case, but you don't win, so I'm going to say it's without merit. That doesn't mean it's trivial or so. Well, they specifically refer to the panel that dealt with the bird versus Gillis specifically cited to a 1915 E2B. Now, they didn't go ahead and say, well, which particular subsection, but they clearly their intent was to dismiss it under that section of the appeal. You don't draw any distinction between a case as dismissed as being frivolous and one that's dismissed as being without merit. Of course, there's a difference, your honor. And something has no basis whatsoever in a fact that it is frivolous and some of those are arguing that basis in fact the law could stay to claim and still, it still would be dismissed and I'll be sick. But actually, if you look at that, let me just press that point. If we were to conclude that Gillis was not dismissed on one of the grounds listed in 1915 G, then that would mean that he would only have two strikes. Not three, is that correct? It's agreed that there's, he has two fee paid strikes. Well, he has two strikes whether hate or not. And then we'll have the one that's in the skewed or that the Amicus Council says is unclear is the Gillis versus bird versus Gillis. But if you read that opinion, what it's saying is that this base, the underlying case was dismissed for a failure state of claim, even though it was phrase as a motion for summary judgment. Because they say understand and they fail to state a due process claim

. That's necessarily true. You may have a good case and I can reason my way through your case, but you don't win, so I'm going to say it's without merit. That doesn't mean it's trivial or so. Well, they specifically refer to the panel that dealt with the bird versus Gillis specifically cited to a 1915 E2B. Now, they didn't go ahead and say, well, which particular subsection, but they clearly their intent was to dismiss it under that section of the appeal. You don't draw any distinction between a case as dismissed as being frivolous and one that's dismissed as being without merit. Of course, there's a difference, your honor. And something has no basis whatsoever in a fact that it is frivolous and some of those are arguing that basis in fact the law could stay to claim and still, it still would be dismissed and I'll be sick. But actually, if you look at that, let me just press that point. If we were to conclude that Gillis was not dismissed on one of the grounds listed in 1915 G, then that would mean that he would only have two strikes. Not three, is that correct? It's agreed that there's, he has two fee paid strikes. Well, he has two strikes whether hate or not. And then we'll have the one that's in the skewed or that the Amicus Council says is unclear is the Gillis versus bird versus Gillis. But if you read that opinion, what it's saying is that this base, the underlying case was dismissed for a failure state of claim, even though it was phrase as a motion for summary judgment. Because they say understand and they fail to state a due process claim. And under the O'Neill case, they talk about whether or not the decision has a fully sufficient basis or whether a failure state of claim is a fully sufficient basis for the decision. I put it to you that you're putting aside the immunity part of the decision and the failure to exhaust part of the decision that you could also find under the underlying bird case, bird versus Gillis case, it was dismissed for failure state of claim. Actually, you know, I go at that one of the good things about 1915 G is that you don't have to read the opinion. Just look at the decision. Well, Your Honor, I put it to you that by citing to the specific 1915 E2B in the Gillis versus bird versus Gillis decision, the panel meant to say it was one of those three basis. And it should count as a straight. What relevance does 15A have the provision have to a totally separate provision governing in form of corporate filings? Why are the two related? Well, Your Honor, I don't think I have related them, but their part, their intent of both of them is to deal with service lawsuits and the one has to do a screening. Yeah, but that inform a corporate skills within form of corporate. 1915 A just deals with screening. I think by failing to limit the scope of the screening provision, 1915 A, to just IFP cases, I think that that's consistent. But our interpretation, 1915 G that the congressman to deal with the issue itself issue was not, IFP inmates, particularly the concern was with wasteful and burdensome litigation tying up the courts and tying up the state governments aren't we in generating here some. Some class litigation here between people who pay and people who don't pay, I mean there's a difference. Class warfare almost treat them over the same one person pays the other doesn't. Why should we treat them the same? Well, Your Honor, the congress has class warfare. As you indicated that sometimes it's best just to read the plain language of statute and I put it to you of congress and attended the limit the scope of three strike provision to those who just were IFP they could have easily done so, but they did not

. And under the O'Neill case, they talk about whether or not the decision has a fully sufficient basis or whether a failure state of claim is a fully sufficient basis for the decision. I put it to you that you're putting aside the immunity part of the decision and the failure to exhaust part of the decision that you could also find under the underlying bird case, bird versus Gillis case, it was dismissed for failure state of claim. Actually, you know, I go at that one of the good things about 1915 G is that you don't have to read the opinion. Just look at the decision. Well, Your Honor, I put it to you that by citing to the specific 1915 E2B in the Gillis versus bird versus Gillis decision, the panel meant to say it was one of those three basis. And it should count as a straight. What relevance does 15A have the provision have to a totally separate provision governing in form of corporate filings? Why are the two related? Well, Your Honor, I don't think I have related them, but their part, their intent of both of them is to deal with service lawsuits and the one has to do a screening. Yeah, but that inform a corporate skills within form of corporate. 1915 A just deals with screening. I think by failing to limit the scope of the screening provision, 1915 A, to just IFP cases, I think that that's consistent. But our interpretation, 1915 G that the congressman to deal with the issue itself issue was not, IFP inmates, particularly the concern was with wasteful and burdensome litigation tying up the courts and tying up the state governments aren't we in generating here some. Some class litigation here between people who pay and people who don't pay, I mean there's a difference. Class warfare almost treat them over the same one person pays the other doesn't. Why should we treat them the same? Well, Your Honor, the congress has class warfare. As you indicated that sometimes it's best just to read the plain language of statute and I put it to you of congress and attended the limit the scope of three strike provision to those who just were IFP they could have easily done so, but they did not. And that's what the judge posner and the valve points out that there's this there is no such limitation and the contract was it didn't include it either. They didn't say it one way or the other. That's correct, but the plain language in is would apply to both and to add different sections, different sections are not the same section. One deals with inform of corporate, the other deals with screening. Well, Your Honor, I was focusing on 1915 G when I was speaking about why don't you cite to our case of do it. Do it versus somebody do it versus United States. Doesn't that help you? Doesn't that help your argument? Your Honor, I don't think that was cited any degree so I'm not familiar with that. Okay. You haven't seen that case. No, I have. Seems to me that it might help your argument. Talks about what frivolous is. Well, Your Honor, just to sum up, I think it's clear that there is no limitation within the three strike provision. And what is frivolous is frivolous, whether or not it's fee-bait case or an IFP case. And if Congress had intended to make such a limitation, they could easily have done so

. And that's what the judge posner and the valve points out that there's this there is no such limitation and the contract was it didn't include it either. They didn't say it one way or the other. That's correct, but the plain language in is would apply to both and to add different sections, different sections are not the same section. One deals with inform of corporate, the other deals with screening. Well, Your Honor, I was focusing on 1915 G when I was speaking about why don't you cite to our case of do it. Do it versus somebody do it versus United States. Doesn't that help you? Doesn't that help your argument? Your Honor, I don't think that was cited any degree so I'm not familiar with that. Okay. You haven't seen that case. No, I have. Seems to me that it might help your argument. Talks about what frivolous is. Well, Your Honor, just to sum up, I think it's clear that there is no limitation within the three strike provision. And what is frivolous is frivolous, whether or not it's fee-bait case or an IFP case. And if Congress had intended to make such a limitation, they could easily have done so. And I'll put it to you, it would be an observed result to interpret this particular section to only apply to IFP. Emails because then someone who paid, who paid the fee could have unlimited file unlimited numbers of frivolous and malicious, and lack of merit matters and clog up the courts. The danger of the harm is equal, whether or not someone who paid the fee or did not paid the fee. And there is no base, no clear indication in the congressional record about this particular section, whether it was IFP based strikes or non-IFP based strikes. And there is no reason to interpret such a, to impose such an invitation, even though the court may feel that may be the better policy that's not the role of the court to impose its own policy considerations on interpreting statute. The idea is to apply what was in the intent of the Congress and the plain meaning of the language. I also would argue that the three circuits that have addressed this issue have persuasive language in their opinions of the bill case and the BIRC hard case and the Highland case, in particular, the bill or the court indicated that just because someone paid the fee, the bill may think that he more seriously considered the merits of a case before he filed, but that does not mean that that's not a sufficient reason to interpret the language of a statute in that way where there is no specific limitation of file. And I believe that the bill is not only as far as the Gillis versus Bird decision, I believe red in its entirety. It should count as a strike because it specifically says this appeal is without merit. We find that this appeal is without merit. And that is being dismissed. The only argument that we have to read these opinions from the back in order to determine the basis for dismissal and whether it comports with 1915. Well, you're under that. That's sometimes as necessary because obviously the defendant has the burn to approve the strike. So he has to come up and display the strikes to the court

. And I'll put it to you, it would be an observed result to interpret this particular section to only apply to IFP. Emails because then someone who paid, who paid the fee could have unlimited file unlimited numbers of frivolous and malicious, and lack of merit matters and clog up the courts. The danger of the harm is equal, whether or not someone who paid the fee or did not paid the fee. And there is no base, no clear indication in the congressional record about this particular section, whether it was IFP based strikes or non-IFP based strikes. And there is no reason to interpret such a, to impose such an invitation, even though the court may feel that may be the better policy that's not the role of the court to impose its own policy considerations on interpreting statute. The idea is to apply what was in the intent of the Congress and the plain meaning of the language. I also would argue that the three circuits that have addressed this issue have persuasive language in their opinions of the bill case and the BIRC hard case and the Highland case, in particular, the bill or the court indicated that just because someone paid the fee, the bill may think that he more seriously considered the merits of a case before he filed, but that does not mean that that's not a sufficient reason to interpret the language of a statute in that way where there is no specific limitation of file. And I believe that the bill is not only as far as the Gillis versus Bird decision, I believe red in its entirety. It should count as a strike because it specifically says this appeal is without merit. We find that this appeal is without merit. And that is being dismissed. The only argument that we have to read these opinions from the back in order to determine the basis for dismissal and whether it comports with 1915. Well, you're under that. That's sometimes as necessary because obviously the defendant has the burn to approve the strike. So he has to come up and display the strikes to the court. Sometimes it may not be as clear as you would have it. But I would say that the read the entirely of the opinion in the Gillis, the bird versus Gillis, that they were, they found that there was no basis, no statement of a claim of due process understanding, which is failed to state a claim, which I would say would be. The equivalent to a strike under 1915. Jay and by using the specific, citing the specific section of 1915, E to B, the court, meant that they wanted to affirm the appeal on one of those three basis. So I said to find in favor of the appellate position. Thank you, Mr. Doreen. Mr. Trello. You know, I, your argument I was thinking about the, the, the IFBI. Once in a blue moon you get an IFP case that has merit that, that relief is granted and, and is good. But I've never met a frivolous case that I've liked. So I, I'm wondering if that, why doesn't that suggest to you that the purpose, Congress's purpose is to get rid of that frivolous, constant, vaceless litigation? Well, your honor. I'd agreed that Congress's purpose was to get rid of frivolous litigation as well as malicious and unmeritorious litigation. But the mechanism that they chose to address that was this, IFP three strikes provision as the Supreme Court noted in Nitsky, not every strike dismissal is completely without merit

. Sometimes it may not be as clear as you would have it. But I would say that the read the entirely of the opinion in the Gillis, the bird versus Gillis, that they were, they found that there was no basis, no statement of a claim of due process understanding, which is failed to state a claim, which I would say would be. The equivalent to a strike under 1915. Jay and by using the specific, citing the specific section of 1915, E to B, the court, meant that they wanted to affirm the appeal on one of those three basis. So I said to find in favor of the appellate position. Thank you, Mr. Doreen. Mr. Trello. You know, I, your argument I was thinking about the, the, the IFBI. Once in a blue moon you get an IFP case that has merit that, that relief is granted and, and is good. But I've never met a frivolous case that I've liked. So I, I'm wondering if that, why doesn't that suggest to you that the purpose, Congress's purpose is to get rid of that frivolous, constant, vaceless litigation? Well, your honor. I'd agreed that Congress's purpose was to get rid of frivolous litigation as well as malicious and unmeritorious litigation. But the mechanism that they chose to address that was this, IFP three strikes provision as the Supreme Court noted in Nitsky, not every strike dismissal is completely without merit. There are cases that have come up 1983 cases dismissed for failure to state a claim, which had been reversed by the Supreme Court 9-0. And, and my answer is that we just don't know the right mechanism to deal with frivolous complaints as we have noted is for the court to employ those sanctions, which are available under Butler or, or monetary sanctions or in the case of an IFP filer a strike. The problem, of course, is that they're very taxing on judicial resources because people do have to read those complaints and dispose of them. And that's what Congress, I think, is concerned about. That's right. And I think that's what the statute is concerned with. And that's why the statute also provides 1915 E2B prescreening for these complaints to address the discussion that you just had with Apple East Council. 1915 E2B has four grounds for dismissing on the prescreening level. Three of them are strikes on the 1915 G. One of them is a non-strike ground, suing an immune defendant. So I just wanted to clarify the difference between those two statutory provisions. Furthermore, to address your questions to Apple East Council. Last point. Go ahead. Finish it

. There are cases that have come up 1983 cases dismissed for failure to state a claim, which had been reversed by the Supreme Court 9-0. And, and my answer is that we just don't know the right mechanism to deal with frivolous complaints as we have noted is for the court to employ those sanctions, which are available under Butler or, or monetary sanctions or in the case of an IFP filer a strike. The problem, of course, is that they're very taxing on judicial resources because people do have to read those complaints and dispose of them. And that's what Congress, I think, is concerned about. That's right. And I think that's what the statute is concerned with. And that's why the statute also provides 1915 E2B prescreening for these complaints to address the discussion that you just had with Apple East Council. 1915 E2B has four grounds for dismissing on the prescreening level. Three of them are strikes on the 1915 G. One of them is a non-strike ground, suing an immune defendant. So I just wanted to clarify the difference between those two statutory provisions. Furthermore, to address your questions to Apple East Council. Last point. Go ahead. Finish it. About Grayson and Santana. We only rely on those cases insofar as it supports our argument that the language is ambiguous. The word action was found ambiguous first and then habeas and those 1983 claims under 1915 E2B were excluded for different reasons, but that doesn't change our position. The language is unclear. Thank you. Thank you, Ms. Trello. Thanks also to Drexel University of Law School for helping us out with these cases. The arguments were very well presented. Wall around. We'll take the case and the results. Thank you very much.

Thank you and good morning everyone and welcome to our newly refurbished courtroom. We can get started with our first case and understand everyone is here. Bird versus Shannon. Miss Trella. Good morning Your Honors. May it please the court. My name is Rebecca Trella and I serve as a court. I'm from the court. My co-concil, Alex Gowlin, will address why unclear dismissals are not strikes under 1915. But the court's permission I'd like to reserve two minutes for rebuttal. Thank you. Put simply, the paid complaints are not strikes under 1915. Because Congress never intended for them to be strikes. The legislative testimony behind the PLRA shows that Congress was focused on prisoner abuse of the IFP privilege. To address this problem, Congress passed 1915 G, which is a special remedy aimed at limiting indigent prisoners' access to free lawsuits. Do you acknowledge that looking at 1915 G and it's looking at it at least in isolation ways in that way? No, Your Honor. Our position is that the statutory language isn't clear either way. The phrase we're talking about is an action. And the phrase an action appears several times in the PLRA. Sometimes as in 1997 E in 1915 A, it includes all complaints, be paid an IFP. And sometimes as in 1915 E, it includes only IFP complaints. So we're here asking the court to determine whether it's more like 1997 E in 1915 A. The seven circuit seems to run directly against the argument that you're making. At least in Duval versus Miller, the seven circuit found that the statutory language of 1915 G to be clear, noting that inmates who have brought an action on the PL and does not say brought an action or appeal in form of a chorus. And in that case, the court concluded that the prisoner who had brought three suits, that lacks sufficient merit to get beyond the pleadings, were subject to the three-spot rule. So it doesn't matter whether it's in form of a chorus or whether the complaint is paid for according to the text of the statute as it should shatter. That's right that the seven circuit concluded that the language is plain on its face. But our position is that it's not plain on its face because of these differing interpretations elsewhere in the PLRA. Would not be a rewriting of the statute. No, Your Honor, it would not. Our position is that the conclusion in Duval was cursory at best. The court ignored that the law had been interpreted different ways elsewhere in the PLRA. And moreover, in deciding Duval, the court was looking to the precedent of row which had decided that 1915 E was not limited to IFP. The seven circuit has since decided differently in Gladney, which is congruent with this circuit's decision in Grayson, limiting 1915 E to IFP and creating that tension within the statute of the differing interpretations. Same, the same binding in Highland, the six circuit found in Duval, the six circuit found in Highland versus Clayton. Where it found that it didn't matter whether the complaint or the actions paid or not. But it still counted as a restructuring. You distinguish those two cases from your position? Yes, Your Honor. In fact, we distinguish all three cases. Duval, the published case as well as Highland and Berghardt, the tenth circuit case. As all being cursory examinations of the law that did not look to the ambiguity inherent in the statute. It does seem like the weight of jurisprudence is running directly against you. It seems like that. What is your best case for the position that you take? Grayson. This court's decision in Grayson noted that the phrase in action, which had been previously considered in Santana, was at first blush not dispositive and that based on the structural component of the law, as well as the legislative history behind the law, that it was in as in 1915 E, limited to IFP complaints. Probably with Grayson, no, it applied to another section. That's right. And that's the section most analogous to the section we're considering today. Isn't the weakness of your argument about that section, the fact that that section specifically deals with screening IFP complaints? Our position is that that's not a weakness at all. 1915 G uses language that's essentially a copy and paste job from 1915 E. It uses the phrase frivolous malicious or failure to state a claim upon which relief may be granted. Moreover, the structure of the penalty itself reinforces the notion that the provision is limited to IFP. The penalty is not cutting off access to the docket at all. The penalty is lack of access to the IFP process. For somebody who's paying their own way for their own complaints, not having access to the IFP privilege doesn't really matter. It won't affect. Well, that's a good policy, that's a good policy argument if you're looking to create a statute. But as Judge Fisher mentioned, in Grayson, they are only dealing with IFP. So instead of went beyond IFP, non-IFP filings, it's Dicta. There's not, they didn't have to, that's Dicta that you're relying on in Grayson. In any case, in any circuit, here in CIPL, which held that it excludes non-IFP filings. No, Your Honor, there has not been a specific case on point in another circuit. Why should we go off pioneering, so to speak? We're asking the Court to take a closer look at the word action, as determined in this case, then was determined in other circuits, maybe where the issues weren't as fully briefed by Proce litigants. Here we're asking the Court to recognize that this circuit has created a different interpretation of the word action in different parts of the PLRA. If the text of the statute doesn't result of the issue for you or you urge us to look at the meaning of the word action, how about the purpose of the statute? How about the purpose of 19G? And that was afforded by Berghard versus Kaur's Corporation. And it held that the goals of Section 9, 1915G to achieve and curtail the abusive prisoner toward civil rights and conditions litigation and preserving judicial resources. Now, in that way, what difference does it make whether it complains it's paper not paper? Well, Your Honor, this Court has determined in Abdul Akbar that there's a causational relationship between the flood of litigation that has come from prisoners since the 1970s and access to the IFP. Congress concluded in this Court noted that the reason the federal docket is flooded with prisoner litigation is because indigent prisoners have ready access to that IFP privilege. They have a different set of incentives, whereas the filing fee will slow down the fee paid prisoner. It sounds like if you pay for a complaint, it has more merit than if you don't, based on your argument. Based on the quote that I read to you, it didn't seem to make any difference in terms of what Congress sought in acting in 1915G, which is the cut down abusive litigation. Respectfully, Your Honor, that's a tenth circuit case it's not binding on this Court, and this Court's logic in Abdul Akbar, as well as the findings in the fourth circuit in roller, the fifth circuit in Addipigman, the ninth circuit in Andrews V. Servantes, is more persuasive. They pick up on that testimony of the Bill's co-sponsor, Senator Kyle and Senator Doyle, that IFP prisoners have no economic downside to filing, whereas somebody who pays for their own complaint must, in the words of Senator Kyle, thank twice. To determine if that lawsuit is worth the price. Well, Senator Doyle also said that prisoners will litigate at the drop of the hat, simply because they have little to lose and everything to gain. So you could argue that really his intention is expressed by those words, or was to reduce for a blue litigation, whether it was paid for or whether it was IFP. That's right, Your Honor. We do agree that Congress's intent was to reduce for a blue litigation, but we can see by the remedy that they crafted cutting off access to the IFP provision that it's aimed at IFP filers. But why should we rely on statements from Senator's goal and Kyle? I just got done finishing reading Justice Scalia's book on statutory interpretation, and he questions never to, you look at the statute, you don't go with all the so-called tools that we were all taught in law school as to what the statute needs. You just look at the words, and especially since neither of them dealt specifically with the very issue as he's before this panel. Why should we go for something like that? Well, Your Honor, that's right that you only have to look at the words if the words themselves are clear. But in this case, the word action isn't clear, and so we must look to tools beyond that which are found in the statute. We look to the structure, we look to the neighboring sentences, and we look to what happened when the bill was passed. Now here, what is an action? What is an action, a civil action or an action? What is an action? How do you define it? I call on action a civil lawsuit, but this court has already carved out habeas actions which are technically civil actions, but not action. I'm sorry, Your Honor, I see my time is up there. So the word action means civil lawsuit, but in this context, in the PLRA, it may not include all civil actions, and that is our position. Because the language is not clear, because the neighboring sentences, the structure of the penalty and the congressional testimony, support a finding that IFP actions are alone included in the word action in 1915. G, we urge this court to find that VP complaints are not strikes. Thank you, Ed. I'm always tempted to take a little peek at what Congress went. Once you've already been justicefully, help cheat. It seems like your argument seems to favor those who can afford to pay for complaints versus those who cannot, doesn't it? In other words, if you can afford to pay for a complaint, it doesn't count as a strike. But if you cannot pay for a complaint and you go IFP, then it does count as a strike. Well, these are two separate tracks of prisoners. There's no favoring. On the one side, if you can pay for your complaint, then that fee itself serves as an economic disincentive to file abusively, whereas if you're an IFP filer, the specter of strikes serves as the disincentive there. In the Congress, the court can reach out to fee paid filers and sanction them with monetary sanctions or stop them from abusive filing. Should that become a problem? Whereas a monetary sanction doesn't matter to an IFP filer because if you impose sanctions against them, they may not have any money to pay it anyway. That's why strikes are the appropriate remedy for the IFP filer and fees and sanctions are the appropriate remedy for the fee paid filer. Thank you very much. Thank you very much. Ms. Scanlon. Good morning, Your Honours and may I please the court. My name is Alexandra Scanlon and I will be arguing that Birdby Gillis is not a strike because it was dismissed in part on the non-strike grant community and because the court did not expressly label the appeal as frivolous. Why should we follow our well reasoned language in racing? The reason here is that a dismissal as this court did without merit and pursuant to 1915 E2B is unclear because the court did not expressly find that the dismissal was frivolous, malicious or failed to state a claim. Further, we know that Birdby Gillis was dismissed in part on the non-strike grant of immunity which is the fourth classification of dismissals permitted under 1915 E2B. Mr. Bird filed three types of claims, state law claims that were dismissed as an 11th immunity grounds, federal 1983 claims that were dismissed because he failed to exhaust his administrative remedies under 1970 and lastly due process claims that were precluded by Sandin V. Connor. Well, one way of interpreting a statute is where it's found. And why should we limit the 1915 E2B in form of porpoise because it's it's right in the proceedings in form of porpoise statute itself in form of porpoise? As my co-counsel had explained in the original portion of our argument, we should not limit 1915 E2B in form of porpoise complaints in light of the statutory structure, congressional testimony and this court's instruction in Grayson. However, I'm here arguing today that Birdby Gillis is not a strike and that regardless of what this court finds, whether IFP or VP complaints, counter strikes, Mr. Bird has not accrued to strikes because the third strike, the potential strike that this court had identified in its order, expanding the scope of our representation, was Birdby Gillis. What's your best case to support your position? The best case to support our decision is Thompson. Thompson is instructive that if there is that a 1915 E2B dismissal is not a presumptive strike. What was Gillis the basis for dismissal in Gillis? The basis for dismissing Gillis, like I said, your honor was that he had three claims. Do process claims were dismissed under Sandin V. Connor? His federal claims were dismissed because he failed to exhaust his administrative remedies under 1997 E and Mr. Bird's state law claims were dismissed on 11th Amendment immunity grounds. There were no language there about dismissal because of failure to state a claim or because the... The magistrate... The magistrate judge had found those substantive reasons for dismissing his claims. Mr. Bird appealed to this court, which dismissed the action as, and I quote, without merit and pursuant to 1915 E2B. Can we deem the failure to exhaust administrative remedies as filing a meritless, baseless perhaps even the frivolous complaint? Absent and expressed finding of such the seventh circuit has instructed in Harvey V. Lemmon that we cannot read into a dismissal, a ground for dismissal that was not stated, especially when it interferes with the prisoner's ability to file a lawsuit. I see my time is up here on this. Thank you for the questions. Thank you very much. Thank you. Thank you. Mr. Daurian. My name is Raymond Daurian with the Ulstead Chief Counsel for the Pennsylvania Department of Corrections. And I'm here to argue on the three strikes, interpretations solely. I will not address the merits of the underlying case. Basically, the statute is clear. The plain language should be applied in this case. There's no limitation on what is a dismissal or strike under 1915 G. And the courts should not impose such a limitation where none exists. Well, 10th Circuit didn't find that clear in the Gennings. Yes, Your Honor. But I believe the weight of the circuits, the DuBao case, the Berghard case, and the Highland case, all three have very persuasive language. And including Judge J. Posner wrote that even though in theory, someone had paid the fee, would most likely have more seriously considered before he filed, there's nothing in the statute itself to warrant such an interpretation. I don't mean down my gracious, though. No, Grayson, I believe is not on point at all, Your Honor. Grayson had to do with whether or not the trial courts should grant leave to amend under the PL or PL. What about Santana? The Santana case that had to do with what is an action, whether a habeas corpus proceedings constitute an action under the three strikes provision. That I put it to you was fact specific to what is a habeas, a habeas corpus, conditions are unique. We have all the time. We eat the court list on the civil docket. Yes, Your Honor. But the civil docket, not a criminal, and are called civil actions. Well, there's sort of a hybrid action as they see in the, in the civil action. There's no criminal involvement at all. It's really a civil action. Well, it's convicted, he's guilty. And he comes in for a civil action to be found, you should be released for civil purposes. Well, it's a tack on the legitimacy of the criminal sense. But anyway, the Congress didn't say in the statute except for hybrid action. That's correct, Your Honor. And I put it to you that the Santana case is specific to the unique situation of what is a habeas corpus. And also they point out that there was a, yeah, but doesn't at least got against your argument that the statute is clear. Your Honor, that to that particular stat, yes. But what the, what the, the appellance would have this court do is to read into this particular statute, this particular section, 1915G, a limitation was not there. And now the courts, the courts have indicated they will not read into 1915G, what caught additional grounds for what constitutes a strike. So I put it to you, you should not read into limitations as to what's, what's a strike. And they, they've pointed, they've talked about the effect and the intent of Congress, the effect of these frillous lawsuits. I put you that a frillous lawsuit is a frillous lawsuit whether it's filed by someone that paid the fee or someone did not pay the fee. Cut the, so we have a district court of so many tools to deal with frivolous lawsuits and frivolous motions that the frivolity in the district court out was dealt with through a number of mechanisms which you don't need any statutes to deal with it already. Now I agree you're under that the courts have inherent power to control their dockets into sanction. So what do you need this for if you get already deal with it? This is putting a blanket over a band that's already, but have a blanket over the already dead. This is a non-issue frivolous lawsuit. Well, you honor if you take that position, I guess we should throw the whole prison litigation reform back out the window. But the Congress deemed that it was a special enough problem that they needed to issue this statute and I believe it should be given the full effect that was intended by Congress. They do not attend to just attack a certain number of frivolous filers, but they intended to deal with both those who paid and do not pay. Now the other side of the Amicus Council is cherry-pecked very quotations from the Congressional record. Frankly, the Congressional record is very splarse on this issue. There's no statement in it that says strikes. You don't even want to get there. Our position is that under the plain language of the statute there's no need to look at the Congressional record. What about the Bird V. Gillis question? On that issue, I believe the court specifically said in their opinion the third circuit that this appeal was without merit and was being dismissed pursuant to 1950. Without merit is it too big? Without merit, you said let's talk at the statute, but without merit is it listed as one of the three categories for strike in the 1950s. Well, it says frivolous, malicious, and failure state of quiet. I understand those, but I don't understand without merit is being basis for strike. Well, I will put to you your honor that the failure state of claim is based on the 12b6 and that has to do with the trial court level and complaints. I would say analogous to that on the appeal of the public court level will be saying that the appeal was without merit. I don't know that. That's necessarily true. You may have a good case and I can reason my way through your case, but you don't win, so I'm going to say it's without merit. That doesn't mean it's trivial or so. Well, they specifically refer to the panel that dealt with the bird versus Gillis specifically cited to a 1915 E2B. Now, they didn't go ahead and say, well, which particular subsection, but they clearly their intent was to dismiss it under that section of the appeal. You don't draw any distinction between a case as dismissed as being frivolous and one that's dismissed as being without merit. Of course, there's a difference, your honor. And something has no basis whatsoever in a fact that it is frivolous and some of those are arguing that basis in fact the law could stay to claim and still, it still would be dismissed and I'll be sick. But actually, if you look at that, let me just press that point. If we were to conclude that Gillis was not dismissed on one of the grounds listed in 1915 G, then that would mean that he would only have two strikes. Not three, is that correct? It's agreed that there's, he has two fee paid strikes. Well, he has two strikes whether hate or not. And then we'll have the one that's in the skewed or that the Amicus Council says is unclear is the Gillis versus bird versus Gillis. But if you read that opinion, what it's saying is that this base, the underlying case was dismissed for a failure state of claim, even though it was phrase as a motion for summary judgment. Because they say understand and they fail to state a due process claim. And under the O'Neill case, they talk about whether or not the decision has a fully sufficient basis or whether a failure state of claim is a fully sufficient basis for the decision. I put it to you that you're putting aside the immunity part of the decision and the failure to exhaust part of the decision that you could also find under the underlying bird case, bird versus Gillis case, it was dismissed for failure state of claim. Actually, you know, I go at that one of the good things about 1915 G is that you don't have to read the opinion. Just look at the decision. Well, Your Honor, I put it to you that by citing to the specific 1915 E2B in the Gillis versus bird versus Gillis decision, the panel meant to say it was one of those three basis. And it should count as a straight. What relevance does 15A have the provision have to a totally separate provision governing in form of corporate filings? Why are the two related? Well, Your Honor, I don't think I have related them, but their part, their intent of both of them is to deal with service lawsuits and the one has to do a screening. Yeah, but that inform a corporate skills within form of corporate. 1915 A just deals with screening. I think by failing to limit the scope of the screening provision, 1915 A, to just IFP cases, I think that that's consistent. But our interpretation, 1915 G that the congressman to deal with the issue itself issue was not, IFP inmates, particularly the concern was with wasteful and burdensome litigation tying up the courts and tying up the state governments aren't we in generating here some. Some class litigation here between people who pay and people who don't pay, I mean there's a difference. Class warfare almost treat them over the same one person pays the other doesn't. Why should we treat them the same? Well, Your Honor, the congress has class warfare. As you indicated that sometimes it's best just to read the plain language of statute and I put it to you of congress and attended the limit the scope of three strike provision to those who just were IFP they could have easily done so, but they did not. And that's what the judge posner and the valve points out that there's this there is no such limitation and the contract was it didn't include it either. They didn't say it one way or the other. That's correct, but the plain language in is would apply to both and to add different sections, different sections are not the same section. One deals with inform of corporate, the other deals with screening. Well, Your Honor, I was focusing on 1915 G when I was speaking about why don't you cite to our case of do it. Do it versus somebody do it versus United States. Doesn't that help you? Doesn't that help your argument? Your Honor, I don't think that was cited any degree so I'm not familiar with that. Okay. You haven't seen that case. No, I have. Seems to me that it might help your argument. Talks about what frivolous is. Well, Your Honor, just to sum up, I think it's clear that there is no limitation within the three strike provision. And what is frivolous is frivolous, whether or not it's fee-bait case or an IFP case. And if Congress had intended to make such a limitation, they could easily have done so. And I'll put it to you, it would be an observed result to interpret this particular section to only apply to IFP. Emails because then someone who paid, who paid the fee could have unlimited file unlimited numbers of frivolous and malicious, and lack of merit matters and clog up the courts. The danger of the harm is equal, whether or not someone who paid the fee or did not paid the fee. And there is no base, no clear indication in the congressional record about this particular section, whether it was IFP based strikes or non-IFP based strikes. And there is no reason to interpret such a, to impose such an invitation, even though the court may feel that may be the better policy that's not the role of the court to impose its own policy considerations on interpreting statute. The idea is to apply what was in the intent of the Congress and the plain meaning of the language. I also would argue that the three circuits that have addressed this issue have persuasive language in their opinions of the bill case and the BIRC hard case and the Highland case, in particular, the bill or the court indicated that just because someone paid the fee, the bill may think that he more seriously considered the merits of a case before he filed, but that does not mean that that's not a sufficient reason to interpret the language of a statute in that way where there is no specific limitation of file. And I believe that the bill is not only as far as the Gillis versus Bird decision, I believe red in its entirety. It should count as a strike because it specifically says this appeal is without merit. We find that this appeal is without merit. And that is being dismissed. The only argument that we have to read these opinions from the back in order to determine the basis for dismissal and whether it comports with 1915. Well, you're under that. That's sometimes as necessary because obviously the defendant has the burn to approve the strike. So he has to come up and display the strikes to the court. Sometimes it may not be as clear as you would have it. But I would say that the read the entirely of the opinion in the Gillis, the bird versus Gillis, that they were, they found that there was no basis, no statement of a claim of due process understanding, which is failed to state a claim, which I would say would be. The equivalent to a strike under 1915. Jay and by using the specific, citing the specific section of 1915, E to B, the court, meant that they wanted to affirm the appeal on one of those three basis. So I said to find in favor of the appellate position. Thank you, Mr. Doreen. Mr. Trello. You know, I, your argument I was thinking about the, the, the IFBI. Once in a blue moon you get an IFP case that has merit that, that relief is granted and, and is good. But I've never met a frivolous case that I've liked. So I, I'm wondering if that, why doesn't that suggest to you that the purpose, Congress's purpose is to get rid of that frivolous, constant, vaceless litigation? Well, your honor. I'd agreed that Congress's purpose was to get rid of frivolous litigation as well as malicious and unmeritorious litigation. But the mechanism that they chose to address that was this, IFP three strikes provision as the Supreme Court noted in Nitsky, not every strike dismissal is completely without merit. There are cases that have come up 1983 cases dismissed for failure to state a claim, which had been reversed by the Supreme Court 9-0. And, and my answer is that we just don't know the right mechanism to deal with frivolous complaints as we have noted is for the court to employ those sanctions, which are available under Butler or, or monetary sanctions or in the case of an IFP filer a strike. The problem, of course, is that they're very taxing on judicial resources because people do have to read those complaints and dispose of them. And that's what Congress, I think, is concerned about. That's right. And I think that's what the statute is concerned with. And that's why the statute also provides 1915 E2B prescreening for these complaints to address the discussion that you just had with Apple East Council. 1915 E2B has four grounds for dismissing on the prescreening level. Three of them are strikes on the 1915 G. One of them is a non-strike ground, suing an immune defendant. So I just wanted to clarify the difference between those two statutory provisions. Furthermore, to address your questions to Apple East Council. Last point. Go ahead. Finish it. About Grayson and Santana. We only rely on those cases insofar as it supports our argument that the language is ambiguous. The word action was found ambiguous first and then habeas and those 1983 claims under 1915 E2B were excluded for different reasons, but that doesn't change our position. The language is unclear. Thank you. Thank you, Ms. Trello. Thanks also to Drexel University of Law School for helping us out with these cases. The arguments were very well presented. Wall around. We'll take the case and the results. Thank you very much