Comments to the Judicial Conference Standing Committee on Rules of Practice and Procedure regarding proposed amendments to Rule 28 and Form 4 of the Federal Rules of Appellate Procedure.

Brief of Amicus Curiae National Association of Criminal Defense Lawyers in Support of Petitioner and Supporting Reversal.

Argument: In deciding when to impose a “strike,” Congress incorporated the well-established merits-based distinction between a with-prejudice dismissal and a without-prejudice dismissal. Treating a dismissal without prejudice as a strike undermines the Judiciary’s inherent equitable power to leave the courthouse doors open to meritorious claims brought by indigent prisoners. Treating a without-prejudice dismissal as a strike penalizes poor prisoners for proceedings pro se and stifles meritorious claims.

Brief for the National Association of Criminal Defense Lawyers as Amicus Curiae in Support of Petitioner.

Argument: The interest in ease of administration and the purposes of the PLRA favor treating a prior dismissal as a ‘strike’ only after it becomes final on appeal. The majority interpretation is a simple rule that courts have applied since 1996 without difficulty. The majority interpretation calls for the same familiar finality determination courts routinely make in other contexts. The Sixth Circuit’s interpretation produces bizarre results and uncertainty, with no attendant benefit.

Brief of the Southern Poverty Law Center, the National Association of Criminal Defense Lawyers, and the Human Rights Defense Center as Amici Curiae in Support of Petitioner.

Argument: Congress enacted the PLRA against the background of this country's tradition of access to the courts and the opportunity for judicial redress. The fee-collection provision of the PLRA reflects a careful balance. The "Per Case" approach threatens to deter meritorious lawsuits.