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COLUMN: The Law in Real Life: Appeals Court Runs Out of Patience for One Man’s Free Litigation

COLUMN: The Law in Real Life

by Linda Holmes, J.D.

Appeals Court Runs Out of Patience for One Man’s Free Litigation

Oct. 7, 2008

Once again, Tyrone Hurt has been rebuffed.

Hurt, who seems to file lawsuits as either a hobby or a compulsion, has appealed lower-court dismissals of more than 70 cases in the District of Columbia Circuit Court of Appeals since 2006. He sues “defendants” that include the Declaration of Independence, the United Nations, courts and court officers, and other government officials. Finally, last week, the appeals court ran out of patience.

Not only did the court revoke Hurt’s privilege to proceed in forma pauperis — a status established by court rule that allows litigants who cannot afford filing fees to file without them — in his 44 pending appeals and summarily dismiss them all, but much more unusually, it prospectively denied him the status for any future appeals, requiring that he pay the applicable fees.

In forma pauperis (IFP) status, in the D.C. Circuit and elsewhere, allows litigants who swear to their inability to pay filing fees to proceed without paying them. It is critical for impoverished litigants, such as prisoners, but also removes one of the basic obstacles that discourages individuals from creating a torrent of frivolous litigation: court costs. For those who cannot claim to be too poor to pay filing fees, litigation can become an expensive hobby. When costs are removed as an impediment, sufficiently determined (or bored, or both) litigants may consume substantial court resources at little to no risk to themselves. And some of the ways to curb harassing pro se litigants are substantially harder to enforce than sanctions against attorneys who file frivolous lawsuits on behalf of clients.

Appeals Consumed Too Many Court Resources Too Many Times

The court’s decision in Hurt is notable because of how reluctant courts are to revoke IFP status and how fed up they have to be to get there. In spite of the apparently absurd nature of much of Hurt’s litigation, the court allowed 70 appeals to reach its desk before it took action to stop the flood. The combination of Hurt’s huge number of lawsuits and their frivolity and their preposterous damage claims (he has been known to ask for trillions of dollars) and their fundamental illogic seems to have motivated the court to cut him off — not from filing, but at least from filing at no charge.

To make this decision, the D.C. Circuit had to retreat from a previous case in which it concluded that courts could revoke IFP status only one case at a time; they could decide an existing case was frivolous but could not limit future IFP filings. The problem with that approach is that the filings themselves, even if they are active only long enough for IFP status to be revoked and the case dismissed as meritless, consume resources. Litigants in IFP status pay nothing but consume the limited resources of courts that often already are struggling to handle their caseloads.

Intervening cases from other courts convinced the Circuit to change its position, but it took this extreme case — 70 appeals in two years — to get there. Generally, courts rightly pride themselves on granting access to litigants irrespective of their financial position; that’s why IFP status exists. In the case In re McDonald, a Supreme Court case that was cited in the Hurt decision, the Court noted that “[p]aupers have been an important — and valued — part of the Court’s docket,” citing Gideon v. Wainwright, the famous case that arose from a prisoner’s handwritten petition and ultimately established the constitutional right to counsel for criminal defendants. Nevertheless, the Court went on to prospectively revoke, as the appeals court did with Hurt, Jessie McDonald’s access to IFP status, at least with regard to “extraordinary writs,” his filing of choice.

Four justices dissented from the McDonald decision, stating their strong objections to the court’s decision to “bar [the] door to a litigant prospectively.” Justice William J. Brennan Jr. wrote:

This Court annually receives hundreds of petitions, most but not all of them filed in forma pauperis, which raise no colorable legal claim whatever, much less a question worthy of the Court’s review. Many come from individuals whose mental or emotional stability appears questionable. It does not take us long to identify these petitions as frivolous, and to reject them. A certain expenditure of resources is required, but it is not great in relation to our work as a whole. To rid itself of a small portion of this annoyance, the Court now needlessly departs from its generous tradition and improvidently sets sail on a journey whose landing point is uncertain. We have long boasted that our door is open to all. We can no longer.

‘Barring the Door’ Was Not the Hurt Court’s Intent

It is interesting to note that Justice Brennan’s dissent characterizes the prospective revocation of IFP status as “barring the door” to the litigant. The D.C. Circuit, in Hurt’s case, saw it differently, stressing that if Hurt wished to continue filing appeals, he would have to do so “on his own dime.” Indeed, the traditional construct that led to the development of the IFP system has been that disallowing IFP status bars the door to litigants who cannot afford filing fees.

But another argument can be made that what happened to Hurt and McDonald was an intermediate step. It is not a bar but a refusal to remove an obstacle that courts generally believe it is their duty to remove. Perhaps the theory behind these cases is that litigants who consume a certain quantity of court resources with frivolous filings have exhausted their entitlement to litigate without cost. They have, in a sense, used up their “get into court free” card. They still may come to court but now will have to pay for it themselves.

Linda Holmes is a freelance writer in Washington, D.C. She previously practiced law in Minnesota, specializing in employment law and legislative drafting.


Hurt v. Soc. Sec. Admin., No. 06-5339 (D.C. Cir. October 3, 2008).

In re Green, 669 F.2d 779, 781 (D.C. Cir. 1981) (per curiam).

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