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Case number 15-5049, Victor Charles Forsar, Jr.

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Appellate versus Garden City Group, Inc.

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et al.

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Mr. Kozak for the amicus curiae.

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Ms.

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Lyons for the appellees.

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Good morning.

[00:00:53] Speaker 04:
Good morning, Honors.

[00:00:55] Speaker 04:
May it please the Court, my name is Jonathan Kosak as the MP for security on behalf of Appellant Victor Forsstar.

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Your Honor, the Court has requested amicus to address two issues that at their very foundation ask whether this Court should turn its back on its long history of interpreting literally the three strikes provision of the Prisoner Litigation Reform Act.

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The PLRA identifies three grounds upon which an action may be dismissed in its entirety and constitute a strike, frivolousness, maliciousness, and failure to state a claim.

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The question here is whether the court should read into the statute two additional grounds.

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What I'll refer to as a declination in which a court declines to exercise supplemental jurisdiction.

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or state law claim, and what I'll refer to as an express strike, in which the court expressly states that a case it is dismissing constitutes a strike under the PLRA.

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Under this court's precedent in Thompson v. DEA and Butler v. DOJ, which are dispositive in this case, the court should decline to read those grounds into the statute.

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These issues are at play in this case because appellant four-star are petitioned to proceed in form of operas.

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and was denied that privilege by the district court, who concluded that Four Star had already accumulated three strikes.

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The three cases it identified are what I'll shorthand as Merlach, Zemian, and Ness.

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In two of the three cases where I incorrectly identified as strikes, those were Zemian and Ness.

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In neither Zemian nor Ness were all of the claims dismissed on one or more of the enumerated grounds under the three strikes provision.

[00:02:33] Speaker 01:
Can I ask a road mapping question to get me started here, which is let's suppose we agree with you on your express strike argument, right?

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Relatedly.

[00:02:45] Speaker 04:
I'm sorry.

[00:02:46] Speaker 05:
Your proposition that the court's labeling what it's doing as an express strike should not change.

[00:02:52] Speaker 01:
If we agree with you on that, the Zemian one falls just under Thompson itself.

[00:03:00] Speaker 04:
That's correct, Your Honor.

[00:03:01] Speaker 01:
I think.

[00:03:04] Speaker 01:
And therefore, we wouldn't necessarily have to address your first, what you're calling, declination argument, because there would only be two strikes then.

[00:03:13] Speaker 04:
Is that it?

[00:03:14] Speaker 01:
That's correct, Your Honor.

[00:03:14] Speaker 01:
Okay, just making sure I understand.

[00:03:16] Speaker 01:
Okay, keep going.

[00:03:18] Speaker 04:
So as you correctly identified, in Zemian, the federal claims were dismissed for a lack of subject matter jurisdiction, a non-enumerated ground, which the court already found in Thompson.

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And the state law claim was dismissed without prejudice when the court declined to exercise supplemental jurisdiction, in part because the state law claim involved a highly novel application of state law.

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So based on Zemmian alone, the lower court's decision should be reversed.

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The government has conceded that Zemmian was incorrectly identified as a strike on the basis of the dismissal of the federal claim.

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Right, they argue you should take the express strike.

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as it stands.

[00:04:02] Speaker 04:
Correct.

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Ness was also incorrectly decided because in Ness, the federal claims were dismissed for failure to state a claim, but the state law claims were dismissed because the court declined to exercise subject matter jurisdiction, but also because the state law involved highly novel applications of state law.

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And that's important here because the PLRA

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was meant to stem the tide of egregiously meritless cases and a state law claim that's a highly novel application of state law.

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Is it important to your argument that the reason behind the declination was complex issues under state law?

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I mean, I'm grasping for why on the Thompson framework that you make any difference.

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Your Honor, I would say that it's not critical that... It's icing on a cake already frosted.

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Yes.

[00:05:05] Speaker 01:
Thank you, Your Honor.

[00:05:06] Speaker 04:
That's right.

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As long as... Our basic point is that a declination is not one of the three enumerated ground.

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To the extent that you're using it to suggest that the state law claim is probably strong,

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It's one possibility.

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Another possibility is the state law claim was so far out that the poor judge doesn't want to plow through the way in which you establish that it's far out and is therefore a loser.

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I'm just thinking that to make that a significant part of a ruling would be troublesome.

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I understand that, Your Honor.

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I think the point is, though, that what the court didn't do was say that the state law claim was frivolous or they'll state a claim.

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And that would have been an enumerated ground.

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So they specifically chose a different ground, which is a non-enumerated ground.

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Right.

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You're saying it doesn't come within the literal terms of the statute, and because sometimes the state law claims may be novel or complex, it doesn't even come within the spirit, at least in those cases.

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That's correct.

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But we don't have to get to the spirit if we agree with you on the literal.

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That's correct.

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So the only other question is whether this express strike should be given any legal effect.

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Again, looking at the statute, the word strike isn't even in section 1915g.

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And it simply is superfluous.

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If the lower court identifies the three enumerated grounds, there's no need for it to go on to say this constitutes a strike by itself.

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But instead, in the apparent reasoning of the lower court,

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Period.

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That's your argument.

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Correct.

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And that's what the court suggested, or indicated in Thompson, is that it's incumbent upon the lower court to establish the three enumerated grounds, or that it's dismissing on one of the three enumerated grounds, in order to make it clear and ease the burden on the following court.

[00:07:17] Speaker 04:
So allowing an express strike to sort of stand in place would be problematic, because you wouldn't know which of the three grounds.

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It would just become a difficult issue to address on the field.

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It doesn't help the classification issue, as far as I can tell.

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Right.

[00:07:38] Speaker 01:
This isn't critical to your argument, but suppose a district court dismisses a claim for failure

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case for failure to state a claim upon which relief may be granted and it's clear that the district court, the original district court, completely botched that and it was actually a jurisdictional dismissal.

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Can we look behind that or not?

[00:08:01] Speaker 04:
No, Your Honor.

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Under Thompson, you can't.

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That's not an issue here.

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Right.

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Now, I understand it's not an issue here.

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I'm just making sure your reading of Thompson's the same as my reading, which is you can look behind the label express strike, your shorthand, but you can't look behind the substantive basis on which

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the district court acted, even if that was erroneous.

[00:08:22] Speaker 04:
Right.

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I mean, if the district court said this is a failure to state a claim, but it was actually a lack of subject matter jurisdiction, you're sort of out of luck under Thompson.

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But if the district court says this is a strike,

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But it's clear that they were wrong because they relied on a non-enumerated ground.

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That can be addressed.

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And that's exactly what the Ninth Circuit did in the liaison, and we submitted a Rule 28J letter on that issue.

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and the court reversed.

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I don't think this argument is still in the case, but suppose another Court of Appeals, as the Third Circuit did here, has looked at this and said, this person already has three strikes.

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In this particular case, the third circuit relied on the same three cases and I would say that in that particular case the court has the ability to sort of

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reevaluate the prisoner's history and determine whether that was actually an accurate ruling.

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I mean, in any event, bill data issue conclusion is the idea that you're not required to follow decisions that are transparently wrong.

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I think in a sense, you're fitting it into that bottle without quite labeling it that.

[00:10:04] Speaker 04:
I'll be happy to label it.

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It's one of the three factors in the percussive effect.

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concept is if it were working on fairness, it's not to be given preclusive effect.

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And I think here, it's obvious to most everybody that Zemun is not to be considered a strike.

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And so in Akroth, the Third Circuit case, that makes that ruling quite problematic.

[00:10:36] Speaker 03:
Well, it's even easier here, right?

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Because you have the Ninth Circuit saying he's not.

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And the Third Circuit's saying he is, and so if you have two contras, which one would we give collateral as top left at?

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Two.

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Right.

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You're going to pick the Ninth Circuit.

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We're going to pick the Third Circuit.

[00:10:51] Speaker 01:
But your point is, even if we only had one, it doesn't matter in either direction.

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That's correct.

[00:10:58] Speaker 03:
But it certainly works in unfairness if there's another court of appeals that went the other way.

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And I think that in this particular case, it appears that these three cases, Merlach, Ness, and Zemmian, have been sort of the underlying basis and has sort of been passed along and along among a number of different courts.

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And I think finally, the Ninth Circuit said, no, this is not right.

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And I think the district court here would, I'm sorry, the D.C.

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Circuit here, based on its own precedent, should find the same.

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What about the argument that we say the declination of supplemental jurisdiction does not make a decision a strike?

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If that's part of what happens in the case, the decision won't be a strike, even if the rest of what the district court did was a 12th v.

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6th dismissal.

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And so now what every prisoner is going to do is lob in a couple of state law claims.

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What's your answer to that concern?

[00:11:54] Speaker 04:
My answer to that is that's a what I like to call a parade of horribles question, an open up the flight gates question, which this court addressed in Butler, which involved a failure to prosecute.

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And that was a problem that was apparently rampant.

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This court said, okay, we're looking at the statute.

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The statute says that it provides three enumerated grounds.

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A failure to prosecute is not one of those grounds, and it's up to the Congress to address that problem if it wishes.

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And the Supreme Court did the same thing in Nitschke v. Williams.

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failure to state a claim wasn't one of the three enumerated grounds, and the prison officials were also concerned about this issue.

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And again, the Supreme Court said if Congress wants to deal with that, Congress can, and Congress did.

[00:12:44] Speaker 01:
And so here, in this case, if... Yeah, your answer is Congress should fix it if that comes to pass.

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That's my answer.

[00:12:50] Speaker 05:
I think it would also be the case that if this in Brown, the idea that this was...

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requirements of 1915.

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And we shoved it into the pivot two, three-fold category to make it a four-fold category.

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Prisoners would presumably come up with all kinds of similarly

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effective devices for protecting themselves, right?

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I mean, it's hard for me to see that something uniquely advantageous from a prisoner's point of view about hope, raising estate law claims that might trigger this particular type of disposition.

[00:13:44] Speaker 00:
I agree, Your Honor.

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I think there's nothing unique about a declination being a particularly effective way of gaining the system that was any way different than a failure to prosecute, which this Court simply said is not a reason to read a non-enumerated grant into the statute.

[00:14:10] Speaker 01:
Thank you.

[00:14:10] Speaker 01:
We'll hear from you on rebuttal.

[00:14:12] Speaker 01:
We'll hear from the government now.

[00:14:28] Speaker 01:
Good morning.

[00:14:29] Speaker 02:
Good morning, your honor.

[00:14:30] Speaker 02:
May I please the court?

[00:14:33] Speaker 02:
Certainly, I'd just like to pick up where you left off.

[00:14:35] Speaker 02:
Adding state law claims as a way around the three strikes rule in the Prisoner Litigation Reform Act won't be a way to game the system until a court recognizes it as such.

[00:14:45] Speaker 02:
So that's what's at stake here today.

[00:14:47] Speaker 01:
I'm assuming it will become a way to game the system, but I'm also assuming I have no proper role in preventing that.

[00:14:56] Speaker 02:
Well, let's talk about that for a second.

[00:14:58] Speaker 02:
The statute obviously doesn't speak directly to the question.

[00:15:01] Speaker 02:
The Prisoner Litigation Reform Act does not say what a court should do when there are state law claims.

[00:15:06] Speaker 01:
Well, the statute, though, identifies the basis on which

[00:15:11] Speaker 01:
something will count as a strike and that's an exclusive list as I read this statute and when it's dismissed on some other ground or declined exercise some part of the jurisdiction over some part of the case that doesn't fall within one of these three.

[00:15:29] Speaker 02:
Right, but let's maybe it would be good to talk about the Zemion case in particular here, because Zemion is an interesting thing.

[00:15:36] Speaker 02:
That's something for everyone, I like to say.

[00:15:38] Speaker 01:
Well, that doesn't even qualify under Thompson, right?

[00:15:40] Speaker 02:
I disagree, and let me tell you why.

[00:15:43] Speaker 02:
In Zemion, it was a legal malpractice case against a private attorney seeking damages.

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The federal claims were dismissed for lack of jurisdiction.

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The state claims were dismissed without prejudice.

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So there's no question the entire action is dismissed.

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And there's no declination, per se, of supplemental jurisdiction.

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That idea comes out of what the report and recommendations suggested.

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Interestingly, the report recommendation was accepted by the court.

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But the court also said, plaintiffs' claims are so frivolous that no reasonable person could suppose that an appeal would have merit.

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So that wasn't restricted to the federal claims.

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That label, that frivolous label, sticks onto the state law claims as well.

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So Zambia is dismissed.

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How do we know that?

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Because what he's saying is you couldn't take an appeal, and you could easily say that appealing the merits of the federal claims, that would be frivolous.

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And appealing a decision not to exercise supplemental jurisdiction when something is kicked out at the threshold like this would also be frivolous.

[00:16:43] Speaker 03:
That doesn't mean that the underlying claims themselves are frivolous.

[00:16:48] Speaker 02:
Respectfully, I disagree your honor the beginning the sentence says the plaintiff's claims are so frivolous without reference to whether he's talking about the state or the federal claims and I think it means both State law claims are dismissed without prejudice.

[00:17:02] Speaker 03:
So I'm trying to figure out on the prior page.

[00:17:04] Speaker 03:
That's a district court right the magistrate judge so if the district court is not exercising jurisdiction

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over those claims on what legal basis?

[00:17:13] Speaker 02:
Right, it's effectively, I agree that it's effectively declining to exercise supplemental jurisdiction.

[00:17:18] Speaker 03:
Effectively is what he says he's doing.

[00:17:20] Speaker 03:
Pardon me?

[00:17:21] Speaker 03:
You can't say on one page that those things are dismissed without prejudice and then say I'm making a legal ruling that they're frivolous.

[00:17:30] Speaker 03:
I don't understand how you can have those two things under your reading.

[00:17:33] Speaker 03:
I had read the frivolousness as to the appeal of a declination.

[00:17:37] Speaker 02:
And that's certainly, it's one possible reading, but I think it informs the, I mean what the court has said in Thompson was, we're going to look to what happens, what happened, what really happened.

[00:17:51] Speaker 02:
We're not going to look behind it, we're going to look to what happened.

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And in Zemion, the entire case is dismissed.

[00:17:57] Speaker 03:
Would you agree that to evaluate the merits of the state law claims, the court would have to first decide to exercise jurisdiction over them?

[00:18:05] Speaker 03:
Or can a district court say, I'm not exercising jurisdiction?

[00:18:09] Speaker 03:
And by the way, they're frivolous.

[00:18:12] Speaker 02:
Yeah, that gets really to the heart of our argument, which is exactly that pivot point.

[00:18:16] Speaker 02:
If the court declines supplemental jurisdiction, as it is generally speaking required to by Section 1367 when it's dismissing all of the federal claims,

[00:18:27] Speaker 02:
And that's a statute that it has to comply with simultaneously with the PLRA.

[00:18:32] Speaker 02:
So at that point, any commentary that the district court makes on the claims themselves

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It really shouldn't do it at all.

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And if it does it, it's purely advisory.

[00:18:42] Speaker 02:
It has no legal effect one way or the other.

[00:18:44] Speaker 02:
And to force the district courts to interpret the PLRA this way, to require the district courts to tread into that order for purposes of clarifying whether the action is frivolous or it's a strike, consumes the very resources that the Prisoner Litigation Reform Act was designed to avoid having courts do.

[00:19:01] Speaker 02:
It's designed to be

[00:19:02] Speaker 02:
a more efficient way of looking at things.

[00:19:05] Speaker 02:
So when a court takes the federal claims and dismisses them for reasons that qualify under the PLRA, the supplemental jurisdiction claims need to be sort of disregarded.

[00:19:16] Speaker 02:
They don't affect the nature of the dismissal.

[00:19:18] Speaker 02:
The entire case is dismissed.

[00:19:21] Speaker 02:
And that's what the statute says.

[00:19:23] Speaker 02:
The statute doesn't parse it by claims.

[00:19:25] Speaker 02:
It says the action.

[00:19:26] Speaker 02:
And the action remains dismissed under the PLRA when this happens.

[00:19:30] Speaker 03:
Your view is when part of the claims that are dismissed for lack of jurisdiction, that that counts as

[00:19:38] Speaker 03:
Because I'm still not understanding your next part here, since we agree that anything they said about frivolousness is an advisory opinion, because they are exercising jurisdiction.

[00:19:46] Speaker 03:
And if they say federal claims are out for failure to state a claim, state claims are out because I'm not exercising jurisdiction, so the action is dismissed.

[00:19:57] Speaker 03:
How does that help you?

[00:19:58] Speaker 03:
Because the PLRA says we have to look at the basis for dismissal, not just whether something was dismissed, but what is the legal basis for dismissal?

[00:20:07] Speaker 02:
The focus of the PLRA is properly on the federal claims because that's what Congress was directed at.

[00:20:17] Speaker 02:
I think the thing to understand about what Thompson said about when there are individual claims that aren't dismissed for reasons that qualify under the PLRA, it was talking about a situation, the example the court gave was when one claim is dismissed under Rule 12b6 and one claim succeeds on the merits.

[00:20:36] Speaker 02:
That's a very different situation than what you have with a declamation of supplemental jurisdiction on claims.

[00:20:44] Speaker 01:
Let me make sure I understand one thing.

[00:20:46] Speaker 01:
If one claims dismissed for lack of jurisdiction and one claims dismissed for failure to state a claim, your answer is?

[00:20:53] Speaker 02:
If we are not in the District of Columbia, it can be a strike.

[00:20:58] Speaker 02:
If the court is in the District of Columbia, of course, under Thompson, it cannot be.

[00:21:02] Speaker 01:
OK.

[00:21:02] Speaker 01:
Just making sure I understand that.

[00:21:04] Speaker 02:
And that gets to another sort of point that's running through this, which maybe jumps to the preclusiveness side.

[00:21:09] Speaker 02:
But the rules are different in different jurisdictions.

[00:21:11] Speaker 02:
Other jurisdictions have recognized lack of jurisdiction as a potentially qualifying strike.

[00:21:16] Speaker 02:
That doesn't hold here.

[00:21:17] Speaker 02:
And until the Supreme Court settles that, there's no other way to get around that.

[00:21:23] Speaker 02:
But Thompson speaks in terms, correctly identifies the statute as speaking in terms of dismissal of actions and not claims.

[00:21:30] Speaker 02:
So this is why it has to be this way.

[00:21:35] Speaker 02:
Otherwise, it will be trivial for, as Judge Millett at least posited, for prisoners to add state law claims purely as a way to immunize themselves from getting strikes under the PLRA.

[00:21:48] Speaker 01:
So can I go back to parsing the Zemian order?

[00:21:51] Speaker 01:
Sure.

[00:21:53] Speaker 01:
Is your reading of that, that the case was dismissed on frivolousness grounds?

[00:22:00] Speaker 02:
My reading of the case is that it's mixed.

[00:22:03] Speaker 02:
It is dismissed.

[00:22:05] Speaker 02:
The federal claims were dismissed clearly for lack of jurisdiction.

[00:22:08] Speaker 02:
The state claims are dismissed without prejudice, which is, I think, probably better read, as Judge Millett suggests, as declining to exercise supplemental jurisdiction over them.

[00:22:19] Speaker 02:
in the context of all of the report and recommendation and the adoption by the district court.

[00:22:23] Speaker 02:
I note that it's the same district judge who dismissed Ness.

[00:22:28] Speaker 02:
It's the same judge.

[00:22:29] Speaker 02:
Two years earlier, he dismissed Ness and there expressly declined to exercise supplemental jurisdiction over state law claims.

[00:22:38] Speaker 02:
So that actually gets to one of the other points of sort of administering the PLRA.

[00:22:43] Speaker 02:
This court in Thompson suggested that it was a relatively easy step for judges to make it clear whether they were deeming claims frivolous, malicious, or so failing to state a claim that they should be counted as a strike.

[00:22:54] Speaker 02:
Experience 10 years on perhaps teaches that while it may be a relatively easy step, it's not always taken.

[00:23:02] Speaker 02:
We've got some courts in the country that are apparently being told not to take it at all.

[00:23:06] Speaker 02:
So this question.

[00:23:08] Speaker 02:
take the step of enumerating labeling something as a strike or saying it's being dismissed.

[00:23:14] Speaker 05:
Those are separate things, right?

[00:23:16] Speaker 02:
Dismissal and labeling as a strike.

[00:23:17] Speaker 05:
Normally a court does say what it is doing that's somewhat different from labeling it with respect to possible downstream consequences.

[00:23:26] Speaker 02:
Right.

[00:23:27] Speaker 02:
So in this case, we're dealing with a court that dismissed the cases and labeled them as strikes.

[00:23:35] Speaker 02:
That's what this case is about.

[00:23:38] Speaker 02:
and express strikes in that situation, as Thompson recognized, the advantage of a bright line that avoids the need to relitigate those underlying cases is considerable.

[00:23:50] Speaker 02:
And Thompson recognized that and said we shouldn't relitigate these cases if they're dismissed.

[00:23:56] Speaker 01:
I mean, Thompson as saying you can't relitigate the erroneous dismissal, the erroneous 12b6 dismissal.

[00:24:06] Speaker 02:
The erroneous, what do you mean by that?

[00:24:08] Speaker 01:
Suppose the district court says, I am dismissing this case for failure to state a claim under Rule 12b6.

[00:24:14] Speaker 01:
That's all the district court says.

[00:24:16] Speaker 01:
Right.

[00:24:16] Speaker 01:
And if we looked at that, we'd say that was crazy.

[00:24:18] Speaker 01:
It was actually a dismissal for lack of subject matter of jurisdiction.

[00:24:21] Speaker 01:
I read Thompson to say we can't second-guess the district court judges.

[00:24:27] Speaker 01:
grounds for dismissal there.

[00:24:28] Speaker 01:
However, if the district court says I dismiss for failure to state a claim for lack of jurisdiction and I'm labeling that a strike, I don't read Thompson to say we can't second guess the labeling as a strike.

[00:24:43] Speaker 01:
Do you understand the distinction?

[00:24:43] Speaker 02:
I understand the distinction you're drawing.

[00:24:45] Speaker 02:
And then the third thing I would point out to you is that Thompson also suggests that the Court of Appeals might have a pass on that, because it also says where the Court of Appeals affirms a case, affirms a decision, but calls it frivolous, they appeal frivolous.

[00:25:01] Speaker 02:
The court could look behind that and say it should have been a dismissal pursuant to its duty under 1915E2B, I believe.

[00:25:13] Speaker 01:
But you didn't read Zemian as a dismissal on frivolousness grounds, did you?

[00:25:17] Speaker 02:
No.

[00:25:18] Speaker 01:
OK.

[00:25:18] Speaker 02:
No.

[00:25:18] Speaker 02:
It's a declination of a dismissal.

[00:25:21] Speaker 01:
Dismissal for lack of jurisdiction, and the state law claims are?

[00:25:27] Speaker 02:
Right.

[00:25:28] Speaker 02:
Right.

[00:25:28] Speaker 02:
The state law claims are dismissed without prejudice, it happens to note.

[00:25:34] Speaker 02:
The reason is not clear.

[00:25:36] Speaker 01:
It's amazing how complicated this has become.

[00:25:40] Speaker 01:
And it's supposed to be such a simple system, right?

[00:25:42] Speaker 01:
It's supposed to be simple, I know.

[00:25:43] Speaker 01:
It's supposed to be easy.

[00:25:45] Speaker 01:
Are you all still making the broader collateral stop-all argument?

[00:25:52] Speaker 01:
By that, I mean, because the Third Circuit... Because it's called a strike, it should be a strike?

[00:25:55] Speaker 01:
No, I know you're making that argument.

[00:25:58] Speaker 01:
Say another Court of Appeals put aside the Third and Ninth Circuits here.

[00:26:01] Speaker 01:
Say another Court of Appeals has looked at this, for this person, and said, here she has three strikes.

[00:26:08] Speaker 01:
Are you making a collateral stop all kind of issue, preclusion argument?

[00:26:12] Speaker 02:
No, I'm not, Your Honor.

[00:26:14] Speaker 01:
Can I just ask, is this a government-wide position?

[00:26:17] Speaker 02:
I'm curious whether Maine Justice has... I have not coordinated this position with Maine Justice, Your Honor, and that's an appropriate thing for me to note.

[00:26:27] Speaker 02:
What I would say is, like legions of math teachers through the years, when a court says somebody has three strikes, it benefits all of us if they'll show their work

[00:26:36] Speaker 02:
and at least then identify what strikes are in play.

[00:26:40] Speaker 01:
Right.

[00:26:41] Speaker 01:
So you didn't want to defend that here?

[00:26:43] Speaker 02:
I do not want to defend that here.

[00:26:44] Speaker 02:
That's not the grounds on which the district court ruled.

[00:26:47] Speaker 02:
And I don't feel compelled to defend it here because of that.

[00:26:49] Speaker 01:
It was lurking in some of the earlier papers in this case.

[00:26:53] Speaker 01:
Yeah.

[00:26:53] Speaker 02:
There are lots of things lurking in the papers.

[00:26:56] Speaker 03:
OK.

[00:26:57] Speaker 01:
But then they disappeared in your red brief, I noticed.

[00:27:00] Speaker 03:
Can I ask you a quick question?

[00:27:01] Speaker 03:
Yes, you're on.

[00:27:03] Speaker 03:
Of course.

[00:27:05] Speaker 03:
still incarcerated.

[00:27:07] Speaker 03:
I know he was picked back up in January for purposes of evaluating how important these strikes are going forward, how many strikes he has going forward.

[00:27:17] Speaker 03:
Is he still in prison?

[00:27:20] Speaker 02:
The most current information I had, which I tried to glean from the Bureau of Prison's inmate locator system last night, is that he was not represented in that system as in custody, but he hasn't been, well, I know he has been in custody, pursuant to having been rearrested for failure to register as a sex offender.

[00:27:38] Speaker 02:
So I can't speak with certainty to that issue, but I know it doesn't make a difference to the resolution of this case unless the court were to decide it didn't matter.

[00:27:45] Speaker 02:
But since there seem to be ongoing issues, I think it does matter whether he has three strikes or not.

[00:27:51] Speaker 05:
I'm sorry.

[00:27:54] Speaker 05:
To Mr. Forster.

[00:28:00] Speaker 02:
That he remains free, of course, to file as a non-incarcerated person, and nothing about his prior litigation history would impact his right.

[00:28:10] Speaker 02:
That's true.

[00:28:12] Speaker 02:
But I can't.

[00:28:13] Speaker 02:
If it's important to the court, I will find out and file a letter.

[00:28:16] Speaker 03:
Well, could he go back in this case and say, well, now I'm entitled to IFP free of the PLRA?

[00:28:22] Speaker 02:
He might be able to do that if he refiled the case, but this case having been filed while he was a prisoner, our position would be that Prisoner Litigation Reform Act applies.

[00:28:32] Speaker 02:
If I could briefly turn, I know my red light is on, but if I could briefly turn to this, the preclusiveness of the strikes, the court has made it fairly clear that it disagrees with my position, but

[00:28:47] Speaker 02:
It makes it a hard system if courts go to the trouble.

[00:28:51] Speaker 02:
I mean, if it isn't much trouble and the courts go to it, to then lightly disregard what another court says in another jurisdiction about whether it's a strike.

[00:28:59] Speaker 01:
Well, to give you half a loaf, it's not going to be irrelevant when the district court says that about its own decision.

[00:29:05] Speaker 01:
It'll be useful evidence for a court down the road, but it won't be dispositive.

[00:29:13] Speaker 01:
In other words, even if we reject your position on the preclusiveness of the strike label, that's not going to make the strike labeling exercise completely worthless.

[00:29:24] Speaker 02:
Okay.

[00:29:24] Speaker 02:
Well, I have two quick points then on that.

[00:29:26] Speaker 02:
One is that this case is not here on de novo review of these strikes right now.

[00:29:31] Speaker 02:
It is here on the district court's decision.

[00:29:33] Speaker 02:
And we at least raised in our brief the possibility that not all of these cases are subject to the same exact standard review.

[00:29:40] Speaker 02:
Now, I will readily, we cited the Barber versus Browner case, which talked about mixed standards of review or mixed case law and fact review.

[00:29:48] Speaker 02:
And this is an area, one of the examples cited in Barber for the need for getting over review would be where the law needs to be developed.

[00:29:56] Speaker 02:
And I can't stand here and say that the law here is so clear.

[00:29:59] Speaker 02:
that so what I'm suggesting is there's there's no reflexive need here to do that then overview you may do that here for legitimate reasons but as a general matter this case is here on the district court's decision dismissal not on this court's motion for IFP okay so that's a distinction last point which I forgot and making that one too long hold on

[00:30:28] Speaker 03:
You were talking about the collateral estoppel, if that helps you.

[00:30:30] Speaker 02:
Oh, collateral estoppel.

[00:30:32] Speaker 02:
Oh, collateral estoppel.

[00:30:34] Speaker 02:
Really, I was talking about that?

[00:30:37] Speaker 02:
OK.

[00:30:38] Speaker 02:
Maybe not.

[00:30:40] Speaker 02:
It doesn't apply here.

[00:30:41] Speaker 02:
The Prisoner Litigation Reform Act is a statute that has to be complied with.

[00:30:45] Speaker 02:
A judicially created doctrine of collateral estoppel doesn't really have an application in this setting.

[00:30:51] Speaker 02:
When a court says it's a strike, the federal judiciary, here's my point, federal judiciary

[00:30:56] Speaker 02:
has a means for that to be resolved.

[00:30:59] Speaker 02:
That would be a direct appeal to the appellate court to get the strike overturned, or perhaps a Rule 60B6, probably, motion back to the deciding judge to remove the strike.

[00:31:09] Speaker 01:
That's, I mean, to just flood new litigation into challenging the late strike label alone, I mean, I don't know.

[00:31:18] Speaker 05:
That seems very basic argument why it should make little or no difference the imposition of the label.

[00:31:27] Speaker 02:
The imposition of the label should make some difference, because as Thompson recognizes, it's little enough of an extra thing once a court has gone as far as it has evaluating the court.

[00:31:39] Speaker 05:
I think Thompson was just talking about making clear the basis of your action.

[00:31:43] Speaker 05:
That's different.

[00:31:47] Speaker 02:
All I can say in closing, Your Honor, is that I think it should have, and perhaps that's ultimately your point, Judge Palin.

[00:31:54] Speaker 02:
It's not that it has no value.

[00:31:56] Speaker 02:
It's just that it's not necessarily going to be dispositive in every situation.

[00:32:01] Speaker 01:
Thank you very much for your argument, and we'll give you two minutes on rebuttal.

[00:32:12] Speaker 04:
Thank you, Your Honors.

[00:32:13] Speaker 04:
Unless you have any further questions, I'm prepared to.

[00:32:18] Speaker 01:
Okay, that's a wise choice.

[00:32:20] Speaker 01:
You were appointed, Mr. Shelley and Mr. Kosak, you were appointed by the court and the court, thank you very much for your excellent assistance in this case.

[00:32:30] Speaker 01:
The case is submitted.