Lee, Minghao v. Clinton, William J. ( 2000 )

In the
United States Court of Appeals
For the Seventh Circuit
Nos. 99-3250 & 99-3859
Minghao Lee,
Plaintiff-Appellant,
v.
William J. Clinton, et al.,
Defendants-Appellees.
Appeals from the United States District Court
for the Western District of Wisconsin.
Nos. 99 C 501 & 99 C 607--Barbara B. Crabb, Judge.
Submitted February 24, 2000--Decided April 10, 2000
Before Posner, Chief Judge, and Diane P. Wood and
Evans, Circuit Judges.
Posner, Chief Judge. The plaintiff, Lee, filed
two insane complaints charging the United States
and China with a conspiracy to "bio-chemically
and bio-technologically infect and invade"
various people including Lee with a mind reading
and mental torture device that Lee calls "Mind
Accessing and Torturing via Remote Energy
Transferring (MATRET)." To elude MATRET, Lee
claims to have developed a variety of space
technologies, oddly including an email system and
nanny services, that will enable the victims of
MATRET to relocate to MATRET-free planets. The
district judge dismissed the suits as frivolous,
but granted Lee leave to appeal in forma
pauperis.
We have held that "the granting of leave to
appeal in forma pauperis from the dismissal of a
frivolous suit is presumptively erroneous and
indeed self-contradictory," Tolefree v. Cudahy,
49 F.3d 1243, 1244 (7th Cir. 1995), but that was
before the Prison Litigation Reform Act amended
28 U.S.C. sec. 1915, the statute governing
proceedings in forma pauperis in the federal
courts. The standard for refusing to permit an
appeal to be taken in forma pauperis is that the
appeal be certified by the district court in
writing as "not taken in good faith," 28 U.S.C.
sec. 1915(a)(3), and in Newlin v. Helman, 123
F.3d 429, 433 (7th Cir. 1997), we suggested that
"good faith" is not a synonym for "frivolous."
Yet the two concepts have long been explicitly
equated in decisions concerning pauper status,
e.g., Coppedge v. United States, 369 U.S. 438,
444-46 (1962); Celske v. Edwards, 164 F.3d 396,
398 (7th Cir. 1999); Lucien v. Roegner, 682 F.2d
625, 626 (7th Cir. 1982) (per curiam); Wooten v.
District of Columbia Metropolitan Police Dept.,
129 F.3d 206, 208 (D.C. Cir. 1997); Urrutia v.
Harrisburg County Police Dept., 91 F.3d 451, 455
n. 6 (3d Cir. 1996); Drummer v. Luttrell, 75 F.
Supp. 2d 796, 805 (W.D. Tenn. 1999), though only
Celske and Urrutia arose under the PLRA. We have
found only two cases, besides Newlin, that deem a
determination of "good faith" to require a
subjective inquiry and a determination of
"frivolousness" merely an objective inquiry,
Hyche v. Christensen, 170 F.3d 769, 770 (7th Cir.
1999); Jaffe v. United States, 246 F.2d 760, 761
(2d Cir. 1957) (L. Hand, J.), and only one is a
PLRA case. The district court thought that
because Lee does not appear to be faking madness,
a la Hamlet, there is no ground for supposing him
to be acting in subjective bad faith in filing
his fantastic lawsuits. But he is acting in bad
faith in the more common legal meaning of the
term, in which to sue in bad faith means merely
to sue on the basis of a frivolous claim, which
is to say a claim that no reasonable person could
suppose to have any merit.
The Prison Litigation Reform Act was intended to
reduce, not increase, the number of frivolous
suits, and although the concern was with
frivolous suits by prisoners and Lee is not a
prisoner, it is hardly likely that Congress took
the occasion to expand the rights of nonprisoner
frivolous filers--a particularly pertinent
observation since Lee filed five suits in 1999
and an unknown number previously (and no doubt
subsequently). Moreover, the PLRA did not change
a word in the standard for denial of in forma
pauperis status on appeal, but merely shifted it
to a different subsection of 28 U.S.C. sec. 1915.
The law was clear that "good faith" as it
appeared in the identical provision of the pre-
amended statute was an objective concept, a
synonym for frivolous. Besides Coppedge and the
other cases cited earlier, see, e.g., Ellis v.
United States, 356 U.S. 674 (1958) (per curiam);
Dixon v. Pitchford, 843 F.2d 268, 270 (7th Cir.
1988); DeBardeleben v. Quinlan, 937 F.2d 502, 505
(10th Cir. 1991); Oatess v. Sobolevitch, 914 F.2d
428, 430 n. 4 (3d Cir. 1990); Howard v. King, 707
F.2d 215, 219-20 (5th Cir. 1983) (per curiam). It
would be odd for Congress, having reenacted this
much-construed term without change, to have
intended to alter its meaning.
Odd, not impossible. For the PLRA changed
another subsection of section 1915, subsection
(d), which had provided that "the court may
request an attorney to represent any such person
[i.e., an indigent] unable to employ counsel and
may dismiss the case if the allegation of poverty
is untrue, or if satisfied that the action is
frivolous or malicious" (emphasis added). This
language now appears not in 1915(d) but, slightly
altered, distributed between two other
subsections of 1915: subsection (e)(1) ("the
court may request an attorney to represent any
person unable to afford counsel") and subsection
(e)(2)(B)(i) ("the court shall dismiss the case
at any time if the court determines that the
action or appeal is frivolous or malicious")
(emphasis added). Newlin did not remark the words
that we have italicized, but may have been
influenced by them. The argument would be that
since subsection (e)(2)(B)(i) expressly permits
dismissal of an appeal that is frivolous, while
subsection (a)(3) provides that an appeal may be
taken only in good faith, there are different
standards for dismissing an appeal and permitting
it to be taken in the first place. And the
question for the district judge in the present
case was whether to permit Lee to appeal: not
whether to dismiss the case as frivolous (which
she had done), or (for us) to dismiss the appeal
as frivolous, but whether the appeal was taken in
good faith.
But we find this statutory analysis, which seems
to us the strongest and indeed the only argument
that can be made in support of Newlin,
unpersuasive. Without the words "or appeal" it
would be apparent that Congress had not made any
material change in the standard for allowing an
appeal to be taken in forma pauperis. It is
unrealistic to suppose that the words were added
in order to make that standard looser, so that
more frivolous appeals could be taken. An
interpretation more consistent with the thrust of
the PLRA is that "or appeal" was added to make
clear that just because the district court may
have certified that the appeal was taken in good
faith (that is, nonfrivolous), the court of
appeals could make its own determination that the
appeal was frivolous and so dismiss it, as we did
in Tolefree v. Cudahy, supra, for example. This
was implicit in the old subsection (d); the new
subsection (e)(2)(B)(i) merely makes this
explicit. There is no reason why obviously
frivolous appeals such as Lee’s, appeals bound to
be dismissed as soon as the appellate judges get
hold of them, should have to be authorized by the
district judge just because the appellant is a
lunatic in the literal sense of the word.
Because we are overruling so much of Newlin and
Hyche as is inconsistent with our interpretation
of the statute, we have circulated the opinion to
the entire court in advance of publication, in
accordance with 7th Cir. R. 40(e). No judge in
regular active service voted to hear the case en
banc.
Lee should not have been permitted to appeal in
forma pauperis, but since his suits as well as
the appeals are frivolous, we summarily affirm
their dismissal by the district court.