Part of this morning's Ninth Circuit opinion seems undeniably right. The opinion itself declares that "the resolution of this case
emerges as simple." True enough. When you file a lawsuit alongside an IFP application, the filing date for statute of limitations purposes is the date you file, not the date your IFP motion is granted, or denied, or you eventually pay the fees. Filed means filed. Stops the limitations period. End of story.
That part's clearly true, and it's fairly surprising the district court got it wrong.
The other part of the opinion is a tougher call.
The (important) question there is how much income counts as "too much" in order to be granted an IFP waiver for filing fees. On the one hand, $350 (the filing fee in Nevada) is a fair chunk of change to most people. On the other hand, it's a fraction of the costs that are actually incurred (both by the judiciary as well as the parties) in order to resolve a civil lawsuit, and lots of other people are paying it. So when should we say that someone's sufficiently "poor" so they're entitled to a waiver?
Part of today's case is (again) easy. The plaintiff says she only makes $210/week (i.e., around $900/month), and pays $684/month in rent and $15/month in credit card debt. That leaves her with around $200/month to pay for everything else. Food. Medical care. Transportation. Etc.
(The Ninth Circuit's opinion says it leaves her with "less
than $150 per month". I think that's a math error. $210/week x 4.3 weeks/month = $903/month, minus ($684 + $15) = $204/month. A relatively small difference. But a meaningful one to most people; if you're living off of less than $150/month, it would probably be a fairly big change if your income went up to $203/month -- a 35%+ increase.)
When you've only got $200 (or $150) a month to spend on food etc., I agree with the Ninth Circuit that's an easy case. Of course you'd be entitled to IFP status. Just trying to live by spending less than $7/day on food alone. Good luck. Clearly that's count as sufficient for a waiver of a $350 filing fee. On this point the Ninth Circuit has no doubt, saying that "[i]f we were to consider only the monies coming to
Escobedo herself, as set forth in her affidavit in support of her
IFP application, we would have no hesitation in concluding
that the magistrate judge’s denial of the application
constituted an abuse of discretion. Escobedo was plainly
indigent, and her application should have been allowed."
Clearly right, IMHO.
The harder -- and more interesting -- part is what happens when you count the husband's income as well. Ms. Escobedo says that he makes $1800/month in disability income. Well now. That's a lot more than the $200 (or $150) per month we talked about before. If you're making that much, should IFP status be granted?
For procedural reasons, the Ninth Circuit doesn't have to directly resolve this question. The district court didn't assess in detail the husband's income, or his expenses. Maybe there were other things (e.g., child support payments for other kids) that sucked up all -- or nearly all -- of the $1800/month. On this record, we don't know. Hence the remand.
The Ninth Circuit nonetheless goes out of its way to express an opinion on the subject. It says that even the district court properly added the $1800/month to the $900/month, resulting in an income of $2700/month, the denial of IFP status would "represent[], at best, the
outer boundary of stringency."
Hmmm. Now that's interesting. As well as important for a nontrivial number of litigants. Does it ring true?
An income of $2700/month is $32,400/year. That's not a huge number, to be sure. Which is why I think the Ninth Circuit has a sense that this figure would probably justify IFP status. Federal judges, after all, make over six times more than this, and still feel like they're scrimping along. Imagine you had to live on one-sixth of that?! The horror. That's really poor.
So I get from whence that perspective derives. I'm also personally sympathetic to it.
But there's another side as well. An income of $32,400 is far from trivial. Indeed, guess how many families in America survive on less than that? More than half. Is the Ninth Circuit really saying that over half of America is entitled to IFP status? That nearly half of American families are so poor that they shouldn't be forced to pay $350 towards a lawsuit that could easily cost tens (or even hundreds) of thousands of dollars to resolve? Really?
That's a tougher sell.
To me, I'm not sure that the Ninth Circuit's focus on income is exactly right. Don't get me wrong: of course it matters. If you're only making (say) $900/month, sure, you get IFP status. I don't care what else is going on in your world. It'd be unreasonable to make you dump $350 towards a filing fee.
But at $30,000 or so -- and maybe even at lower stages -- to me, what may well matter much more than income are expenses. Not only the quantitative size of those expenses, but their qualitative nature as well.
On the one hand, if you're making $2700/month, are spending $700/month on rent and $2000/month on food and transportation and medical care for you and your six kids, well, geeze, no problem, I'm going to give you IFP status every single time. You've got a cheap apartment (with six kids!) and you are spending $60/day just to clothe and feed your brood. Of course I'm not taking food out of their hungry little bodies by adding another $350 to your expenses. Welcome to federal court for free. (At least on the expense end. Good luck getting a lawyer to take your case for less than $350. All-in.)
But let's say you're making $2700/month, are spending the same $700/month on rent, but don't have any children, and spend $500/month on clothes and $500/month (net!) on lottery tickets. Well, at that point, I don't at all think it'd be the "outer bound[s] of stringency" to make you cut back -- for a single month, no less -- on lottery tickets or purchases of new clothes in order to pay a $350 filing fee. Not in the slightest.
Now, I know that there aren't in fact many people making $32,000/year who spend $500/month on clothes. But the point remains the same. In deciding whether a $350 expense is overly burdensome, what really matters is what it trades off with. What one's other expenses are. That's what's of critical significance, at least to me. Much less than your mere gross income.
So I agree with the Ninth Circuit that you can't judge someone's eligibility for IFP status on the basis of their spouse's income without simultaneously assessing the extent of that spouse's expenses. And I also agree that at a certain gross income level -- here, $10,000/year -- giving someone IFP status is a no-brainer.
But I'm not entirely persuaded that denying IFP status for someone who makes $32,400 a year would "represent[], at best, the outer boundary of stringency." I like to sentiment, to be sure. It stems from good principles, and the motivation is pure.
I'm just not sure it's right.
At a minimum, I'd express that sentiment differently. As well as highlight the fact that it's not only income that matters, but also expenses.
Especially at $30,000-plus a year. The income level of half of America.
