Osterneck v. Ernst & Whinney, 489 U.S. 169 (1989)

OSTERNECK et al. v. ERNST & WHINNEY

CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT

No. 87-1201. Argued November 29, 1988—Decided February 21, 1989

As part of the merger of a company that they owned with another company, petitioners exchanged stock in their company for stock in the other company. In approving the merger, petitioners allegedly relied on the other company’s financial statements prepared by respondent accounting firm. Subsequently, petitioners concluded that certain of those statements misrepresented the company’s financial condition. They then filed an action in Federal District Court against respondent and others, alleging violations of the Securities Exchange Act of 1934, Rule 10b-5 thereunder, and state common law. While returning a verdict against some of the defendants, the jury found in favor of respondent and another defendant. After judgment was entered, petitioners filed a timely motion for prejudgment interest. While that motion was still pending, petitioners filed a notice of appeal from the judgment in favor of respondent and the other defendant. Ultimately, the court granted the motion for prejudgment interest and ordered that the judgment be amended to include that interest. The Court of Appeals held that petitioners’ motion for prejudgment interest was a motion to alter or amend the judgment under Federal Rule of Civil Procedure 59(e), which rendered the notice of appeal ineffective under Federal Rule of Appellate Procedure 4(a)(4), which provides that if a party files a timely motion under Rule 59(e) to alter or amend the judgment a notice of appeal filed before the disposition of that motion “shall have no effect.” The court also rejected petitioners’ contention that Thompson v. /NS, 375 U. S. 384, required it to hear their appeal because they had relied on several actions of the District Court that indicated that the judgment was final and appealable notwithstanding the pending motion for prejudgment interest.

Held: Petitioners’ motion for prejudgment interest constituted a Rule 59(e) motion and rendered ineffective under Rule 4(a)(4) their notice of appeal filed before a ruling on that motion. Pp. 173-179.

(a) Prejudgment interest is part of the compensation due a plaintiff. A postjudgment motion for discretionary prejudgment interest involves the kind of reconsideration of matters encompassed within the merits of a judgment to which Rule 59(e) was intended to apply. Pp. 174-176.

(b) To conclude that a postjudgment motion for discretionary prejudgment interest is a Rule 59(e) motion helps further the important goal of

avoiding piecemeal appellate review of judgments. Moreover, by preventing appellate review before such a motion is resolved, that conclusion gives added assurance that an appellate court will have the benefit of the district court’s plenary findings with regard to factual and legal issues subsumed in the decision to grant prejudgment interest. Pp. 177-178.

(c) On the record, the Court of Appeals correctly declined to apply the reasoning of Thompson, supra, to excuse petitioners’ failure to file an effective notice of appeal. By its terms, Thompson applies only where a party has performed an act that, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done. That is not the case here. Pp. 178-179. 825 F. 2d 1521, affirmed.

Kennedy, J., delivered the opinion for a unanimous Court.

Laurie Webb Daniel argued the cause for petitioners. With her on the briefs were Harold T. Daniel, Jr., Keith M. Wiener, and Paul Webb, Jr.

Gordon Lee Garrett, Jr., argued the cause for respondent. With him on the brief was William B. B. Smith.

Justice Kennedy delivered the opinion of the Court.

Federal Rule of Appellate Procedure 4(a)(4) provides that if any party files a timely motion “under Rule 59 [of the Federal Rules of Civil Procedure] to alter or amend the judgment,” a notice of appeal filed before the disposition of that motion “shall have no effect.” In this case, we decide whether a motion for discretionary prejudgment interest filed after the entry of judgment constitutes a Rule 59 motion to alter or amend the judgment and renders ineffective any notice of appeal filed before a ruling on that motion. If we decide the question in the affirmative, we are asked to decide whether this case nevertheless falls within the so-called “unique circumstances” exception to the timely appeal requirement announced in Thompson n. INS, 375 U. S. 384 (1964) (per curiam).

I

Sometime later, petitioners concluded that Barwick Industries’ financial statements for two years preceding the merger misrepresented the company’s actual financial condition. In 1975, petitioners filed this action alleging violations of §§ 10(b) and 20 of the Securities Exchange Act of 1934, ch. 404, 48 Stat. 891, 899, as amended, 15 U. S. C. §§ 78j(b), 78t (1982 ed. and Supp. IV), Rule 10b-5 thereunder, 17 CFR §240.10b-5 (1975), and Georgia common law. Petitioners named as defendants, among others, Barwick Industries, respondent Ernst & Whinney, and certain directors and officers of Barwick Industries (E. T. Barwick, B. A. Talley, and M. E. Kellar).

After nearly 10 years of pretrial proceedings, the case finally went to trial in 1984. The jury returned a verdict against Barwick Industries, M. E. Kellar, and B. A. Talley in the amount of $2,632,234 in compensatory damages for violations of the federal securities laws and Georgia common law. The jury found in favor of E. T. Barwick and respondent Ernst & Whinney.

Immediately after the jury verdict was announced, petitioners moved orally for prejudgment interest on the damages assessed against Barwick Industries, M. E. Kellar, and B. A. Talley. The District Judge, not wishing to hear argument on petitioners’ motion at that point, directed petitioners to submit their motion for prejudgment interest in writing within 10 days. He stated:

The judgment was filed and entered on the same day, January 30, 1985. Id., at 6-7. On February 11, 1985, petitioners, as directed, filed a written motion for prejudgment interest. Id., at 8-9.

During March 1985, the various parties filed notices of appeal and cross-appeal challenging the January 30 judgment. Of particular importance here, on March 1, 1985, while their motion for prejudgment interest was still pending, petitioners filed a notice of appeal from the January 30, 1985, judgment in favor of E. T. Barwick and respondent Ernst & Whinney. Id., at 34.

The District Court did not rule on petitioners’ motion for prejudgment interest until July 1, 1985. On that date, the court entered an order stating that the final judgment shall be “AMENDED” to reflect an “additional award of [$945,512.85 in] prejudgment interest on the federal securities claim.” Id., at 44. On July 9, 1985, the District Court filed a document captioned “AMENDED JUDGMENT,” stating that the January 30,1985, judgment “is hereby amended by adding thereto . . . [the] award of prejudgment interest,” but shall “remain the same in every other respect.” Id., at 45. After the amended judgment had been entered, petitioners filed one additional notice of appeal on July 31, 1985, captioned as a cross-appeal against M. E. Kellar, B. A. Talley, E. T. Barwick, and Barwick Industries. Id., at 46-47. But, and this is the vital fact for purposes of this case, the notice failed to include respondent Ernst & Whinney as a party to the appeal.

Petitioners sought review here, and we granted certiorari, 486 U. S. 1042 (1988), to resolve a conflict in the Courts of Appeals over whether a motion for prejudgment interest filed after the entry of judgment constitutes a Rule 59(e) motion to alter or amend the judgment. Cf. Jenkins v. Whittaker Corp., 785 F. 2d 720 (CA9 1986). We also agreed to consider, if necessary, whether the Court of Appeals erred in not entertaining petitioners’ appeal under the reasoning of Thompson, supra. We now affirm.

II

Rule 59(e) of the Federal Rules of Civil Procedure provides that a motion to “alter or amend the judgment” shall be served within 10 days of the entry of judgment. Rule 4(a)(4) of the

‘The Court of Appeals also found that petitioners’ July 31, 1985, notice of cross-appeal was ineffective as to the judgment in favor of respondent because respondent was not named in that notice. 825 F. 2d, at 1528-1529. Petitioners have not sought review of that ruling in this Court.

Federal Rules of Appellate Procedure provides that a notice of appeal filed while a timely Rule 59(e) motion is pending has no effect. Together, these Rules work to implement the finality requirement of 28 U. S. C. § 1291 by preventing the filing of an effective notice of appeal until the District Court has had an opportunity to dispose of all motions that seek to amend or alter what otherwise might appear to be a final judgment. A

White v. New Hampshire Dept, of Employment Security, supra, at 451, set the general framework for determining whether a postjudgment motion constitutes a Rule 59(e) motion to alter or amend the judgment. In that case, we held that a request for attorney’s fees under 42 U. S. C. § 1988 was not a Rule 59(e) motion. We stated in White that a postjudgment motion will be considered a Rule 59(e) motion where it involves “reconsideration of matters properly encompassed in a decision on the merits.” 455 U. S., at 451, citing Browder v. Director, Illinois Dept, of Corrections, 434 U. S. 257 (1978). We concluded that a request for attorney’s fees did not fit this description because it raised legal issues “collateral to the main cause of action,” 455 U. S., at 451, requiring an inquiry that was wholly “separate from the decision on the merits,” id., at 451-452. We noted, moreover, that because attorney’s fees under § 1988 are not considered compensation for the injury giving rise to the cause of action, their award was “uniquely separable” from the underlying merits of the controversy. Id., at 452.

In Budinich v. Becton Dickinson & Co., 486 U. S. 196 (1988), the issue was not whether a particular kind of motion constitutes a Rule 59(e) motion, but rather the related question whether a judgment is final under 28 U. S. C. § 1291 when a motion for attorney’s fees remains to be resolved. We acknowledged in Budinich that our earlier decision in White, holding that a request for attorney’s fees under § 1988 was not a Rule 59(e) motion, “all but” answered the finality question. We went on to reiterate that, as a general matter, a request for attorney’s fees is not part of the merits of the underlying action because such fees are not part of the compensation for the plaintiff’s injury but traditionally have been regarded as an element of costs awarded to the prevailing party. 486 U. S., at 199-201.

Under these precedents, the Court of Appeals was correct to conclude that a postjudgment motion for discretionary prejudgment interest constitutes a motion to alter or amend the judgment under Rule 59(e). First, we have repeatedly stated that prejudgment interest “is an element of [plaintiff’s] complete compensation.” West Virginia v. United States, 479 U. S. 305, 310, and n. 2 (1987); see General Motors Corp. v. Devex Corp., 461 U. S. 648, 655-656, and n. 10 (1983). Thus, unlike attorney’s fees, which at common law were regarded as an element of costs and therefore not part of the merits judgment, see Budinich, supra, at 200-201, prejudgment interest traditionally has been considered part of the compensation due plaintiff.

2 We do not intend here to specify what factors a district court must consider when deciding under federal law whether to grant prejudgment interest. We offer this list of factors, taken from lower court cases, merely to demonstrate that the inquiry involves issues intertwined to a significant extent with the merits of the underlying controversy.

3 We do not believe the result should be different where prejudgment interest is available as a matter of right. It could be argued that where a party is entitled to prejudgment interest as a matter of right, a reexamination of issues relevant to the underlying merits is not necessary, and there-

Our conclusion that a postjudgment motion for discretionary prejudgment interest is a Rule 59(e) motion also helps further the important goal of avoiding piecemeal appellate review of judgments. Cf. United States v. Hollywood Motor Car Co., 458 U. S. 263, 265 (1982) (“[T]he policy of Congress embodied in [28 U. S. C. § 1291] is inimical to piecemeal appellate review of trial court decisions”). Because Federal Rule of Appellate Procedure 4(a)(4) renders ineffective any notice of appeal filed while a Rule 59(e) motion is pending, the decision whether a particular pending motion falls under Rule 59(e) will of necessity determine whether an otherwise final judgment is appealable. By preventing appellate review before a postjudgment motion for prejudgment interest is resolved, the rule we adopt today gives added assurance that an appellate court will have the benefit of the district court’s plenary findings with regard to factual and legal issues subsumed in the decision to grant discretionary prejudgment interest, such as the wrongfulness of the defendant’s conduct and the plaintiff’s full damages, as well as other matters of equity bearing on the merits of the litigation. Such information may well be useful to a complete understanding of the district court’s findings on liability and damages. We do not anticipate that our holding will result in undue delays in the entry of a final judgment. Any evidence relating to the

fore the motion should be deemed collateral in the sense we have used that term. However, mandatory prejudgment interest, no less than discretionary prejudgment interest, serves to “remedy the injury giving rise to the [underlying] action,” Budinich v. Becton Dickinson & Co., 486 U. S. 196, 200 (1988), and in that sense is part of the merits of the district court’s decision. Moreover, as we said last Term in Budinich: “[W]hat is of importance here is not preservation of conceptual consistency in the status of a particular [type of motion] as ‘merits’ or ‘nonmerits,’ but rather preservation of operational consistency and predictability in the overall application of the [finality requirement] of § 1291.” Ibid. “Courts and litigants are best served by the bright-line rule, which accords with traditional understanding,” ibid., that a motion for prejudgment interest implicates the merits of the district court’s judgment.

question of prejudgment interest should be available at the time that the other issues in the case are tried, and the district court should be able to dispose of a motion for prejudgment interest within a reasonable time after the entry of verdict. Ill

Petitioners contend that even if their March 1, 1985, notice of appeal was rendered ineffective by the filing of their motion for prejudgment interest, the Court of Appeals nevertheless should have heard their appeal based on the rationale of Thompson v. INS, 375 U. S. 384 (1964). In that case, the petitioner filed with the District Court a motion for a new trial within 10 days of receiving notice of the entry of judgment, but 12 days after the judgment was entered. Although this motion was in fact untimely, the District Court specifically declared that it had been filed “‘in ample time.’” Id., at 385. In reliance on this statement, the petitioner in Thompson did not file an appeal from the District Court’s original judgment, but rather filed a timely appeal from the later denial of his motion for a new trial. Because it found that petitioner’s motion for a new trial was not timely filed, the Court of Appeals dismissed his appeal. In light of these “unique circumstances,” we reversed. Zd.,at387. Because petitioner had filed his notice of appeal in reliance on the specific statement of the District Court that his motion for a new trial was timely, we felt that fairness required that the Court of Appeals excuse his untimely appeal. See ibid.

Petitioners contend that the rationale of Thompson is applicable here because certain statements made by the District Court, as well as certain actions taken by the District Court, the District Court Clerk, and the Court of Appeals, led them to believe that their notice of appeal was timely. After reviewing these claims, the Court of Appeals declined to apply the Thompson exception, concluding:

After reviewing the record, we conclude that the Court of Appeals was correct in declining to apply our reasoning in Thompson to excuse petitioners’ failure to file an effective notice of appeal. By its terms, Thompson applies only where a party has performed an act which, if properly done, would postpone the deadline for filing his appeal and has received specific assurance by a judicial officer that this act has been properly done. That is not the case here.

The judgment of the Court of Appeals is affirmed.

in re McDonald

ON MOTION FOR LEAVE TO PROCEED IN FORMA PAUPERIS No. 88-5890. Decided February 21, 1989 Pro se petitioner filed a motion for leave to proceed in forma pauperis on

his petition before this Court for a writ of habeas corpus. Since 1971, he has made 73 other filings with this Court—including 19 for extraordinary relief—all of which have been denied without recorded dissent.

Held: Petitioner’s motion for leave to proceed informa pauperis is denied, and the Clerk is directed not to accept any further petitions from him for extraordinary writs unless he pays the docketing fee required by this Court’s Rule 45(a) and submits his petition in compliance with Rule 33. The continual processing of his frivolous requests for extraordinary writs does not permit the Court to allocate its limited resources in a way that promotes the interests of justice. Paupers filing pro se petitions are not subject to the financial considerations that deter other litigants from filing frivolous petitions, and lower courts have issued orders intended to curb serious abuses by persons proceeding in forma pauperis. Petitioner remains free to file in forma pauperis requests for other relief, if he qualifies and does not similarly abuse that privilege.

Motion denied.

Per Curiam.

Pro se petitioner Jessie McDonald requests that this Court issue a writ of habeas corpus pursuant to 28 U. S. C. § 2241(a). He also requests that he be permitted to proceed in forma pauperis under this Court’s Rule 46. We deny petitioner leave to proceed in forma pauperis. He is allowed until March 14, 1989, within which to pay the docketing fee required by Rule 45(a) and to submit a petition in compliance with this Court’s Rule 33. We also direct the Clerk not to accept any further petitions from petitioner for extraordinary writs pursuant to 28 U. S. C. §§ 1651(a), 2241, and 2254(a), unless he pays the docketing fee required by Rule 45(a) and submits his petition in compliance with Rule 33. We explain below our reasons for taking this step.

which is his eighth so far this Term. These include 4 appeals,1 33 petitions for certiorari,*219 petitions for extraordinary writs,3 7 applications for stays and other injunctive re-

'See McDonald v. Alabama, 479 U. S. 1061 (1987); In re McDonald, 466 U. S. 957 (1984); McDonald v. Tennessee, 432 U. S. 901 (1977); McDonald v. Purity Dairies Employees Federal Credit Union, 431 U. S. 961 (1977).

2 See McDonald v. Tobey, 488 U. S. 971 (1988); McDonald v. Metropolitan Government of Nashville and Davidson County, 481 U. S. 1053 (1987); McDonald v. Tennessee, 475 U. S. 1088 (1986); McDonald v. Tennessee, 474 U. S. 951 (1985); McDonald v. Leech, 467 U. S. 1208 (1984); McDonald N. Humphries, 461 U. S. 946 (1983); McDonald v. Metropolitan Government of Nashville and Davidson County, 461 U. S. 934 (1983); McDonald v. Draper, 459 U. S. 1112 (1983); McDonald v. Thompson, 456 U. S. 981 (1982); McDonald v. Metropolitan Government of Nashville and Davidson County, 455 U. S. 957 (1982); McDonald v. Tennessee, 454 U. S. 1088 (1981); McDonald v. Draper, 452 U. S. 965 (1981); McDonald v. Tennessee, 450 U. S. 983 (1981); McDonald v. Draper, 450 U. S. 983 (1981); McDonald v. Metropolitan Airport Authority, 450 U. S. 1002 (1981); McDonald v. Metropolitan Government of Nashville and Davidson County, 450 U. S. 933 (1981); McDonald n. United States District Court, 444 U. S. 900 (1979); McDonald n. Birch, 444 U. S. 875 (1979); McDonald v. United States District Court and McDonald v. Yellow Freight Systems, Inc., 444 U. S. 875 (1979); McDonald v. Thompson, 436 U. S. 911 (1978); McDonald v. Tennessee, 434 U. S. 866 (1977); McDonald v. Davidson County Election Comm’n, 431 U. S. 958 (1977); McDonald v. Tennessee, 431 U. S. 933 (1977); McDonald v. Tennessee, 429 U. S. 1064 (1977); McDonald v. Tennessee, 425 U. S. 955 (1976); McDonald v. Tennessee, 423 U. S. 991 (1975); McDonald v. Tennessee, 416 U. S. 975 (1974); McDonald v. Tennessee, 415 U. S. 961 (1974); McDonald v. Wellons, 414 U. S. 1074 (1973); McDonald v. Metro Traffic and Parking Comm’n, 409 U. S. 1117 (1973); McDonald v. Wellons, 405 U. S. 928 (1972); McDonald v. Metropolitan Traffic and Parking Comm’n, 404 U. S. 843 (1971).

The instant petition for a writ of habeas corpus arises from petitioner’s 1974 state conviction for obtaining title to a 1972 Ford LTD automobile under false pretenses, for which he was sentenced to three years’ imprisonment. Petitioner appealed to the Tennessee Court of Criminal Appeals, which reversed his conviction on the ground that there was no evi-

McDonald, 479 U. S. 809 (1986) (habeas corpus); In re McDonald, 470 U. S. 1082 (1985) (habeas corpus); In re McDonald, 464 U. S. 811 (1983) (mandamus and/or prohibition); McDonald v. Leathers, 439 U. S. 815 (1978) (leave to file petition for writ of mandamus); McDonald v. Thompson, 434 U. S. 812 (1977) (leave to file petition for writ of habeas corpus); McDonald v. Tennessee, 430 U. S. 963 (1977) (motion to consolidate and for leave to file petition for writ of habeas corpus); McDonald v. Thompson, 429 U. S. 1088 (1977) (leave to file petition for writ of habeas corpus and other relief); McDonald v. United States Court of Appeals, 420 U. S. 922 (1975) (leave to file petition for writ of mandamus); McDonald v. Mott, 410 U. S. 907 (1973) (leave to file petition for writ of mandamus and other relief).

4 See McDonald v. Metropolitan Government, 487 U. S. 1230 (1988) (stay); McDonald v. Metropolitan Government of Nashville and Davidson County, 481 U. S. 1010 (1987) (stay); McDonald n. Alexander, 458 U. S. 1124 (1982) (injunction); McDonald v. Draper, 451 U. S. 978 (1981) (stay); McDonald v. Thompson, 432 U. S. 903 (1977) (application for supersedeas bond); McDonald v. Tennessee, 429 U. S. 1012 (1976) (stay and other relief); McDonald n. Tennessee, 415 U. S. 971 (1974) (stay).

5 See McDonald v. Alabama, 480 U. S. 912 (1987); In re McDonald, 479 U. S. 956 (1986); McDonald v. Tennessee, 475 U. S. 1151 (1986); In re McDonald, 471 U. S. 1062 (1985); McDonald v. Leech, 467 U. S. 1257 (1984); McDonald v. Draper, 459 U. S. 1229 (1983); McDonald v. Thompson, 457 U. S. 1126 (1982); McDonald v. Draper, 451 U. S. 933 (1981); McDonald v. Tennessee, 425 U. S. 1000 (1976); McDonald v. Tennessee, 417 U. S. 927 (1974).

6 In the affidavit in support of his present motion to proceed in forma pauperis, petitioner states that he earns approximately $300 per month, is self-employed, and has less than $25 in his checking or savings account. He states that he has no dependents.

in re McDonald 183

dence that the alleged victim relied on petitioner’s false statements. In January 1976, the Supreme Court of Tennessee reinstated his conviction. State v. McDonald, 534 S. W. 2d 650. We denied certiorari, 425 U. S. 955, and rehearing, 425 U. S. 1000 (1976).

In the 13 years since his conviction became final, petitioner has filed numerous petitions and motions for relief in this Court and in the Tennessee courts, all of which have been rejected. In the instant petition, for example, he requests that the Court “set aside” his conviction and direct the State to “expunge” the conviction “from all public records.” He is not presently incarcerated. He contends that his constitutional rights were violated by the State’s failure to prove that the property to which he obtained title under false pretenses was valued at over $100, as required by the statute under which he was convicted. Petitioner has put forward this same argument—unsuccessfully—in at least four prior filings with the Court, including a petition for mandamus, which was filed 13 days before the instant petition and was not disposed of by the Court until more than a month after this petition was filed.7

Title 28 U. S. C. § 1915 provides that “[a]ny court of the United States may authorize the commencement, prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein, without prepayment of fees and costs or security therefor.” (Emphasis added.) As permitted under this statute, we have adopted Rule 46.1, which provides that “[a] party desiring to proceed in this Court in forma pauperis shall file a motion for leave to so proceed, together with his affidavit in the form prescribed in Fed. Rules App. Proc., Form 4 . . . setting forth with particularity facts

7 See In re McDonald, 488 U. S. 940 (1988) (petition for mandamus and/or prohibition); In re McDonald, 484 U. S. 812 (1987) (petition for common law certiorari or habeas corpus); McDonald v. Tennessee, 475 U. S. 1088, rehearing denied, 475 U. S. 1151 (1986) (petition for certiorari); In re McDonald, 479 U. S. 809 (1986) (petition for habeas corpus).

showing that he comes within the statutory requirements.” Each year, we permit the vast majority of persons who wish to proceed in forma pauperis to do so; last Term, we afforded the privilege of proceeding in forma pauperis to about 2,300 persons. Paupers have been an important—and valued—part of the Court’s docket, see, e. g., Gideon v. Wainwright, 372 U. S. 335 (1963), and remain so.

But paupers filing pro se petitions are not subject to the financial considerations—filing fees and attorney’s fees—that deter other litigants from filing frivolous petitions. Every paper filed with the Clerk of this Court, no matter how repetitious or frivolous, requires some portion of the institution’s limited resources. A part of the Court’s responsibility is to see that these resources are allocated in a way that promotes the interests of justice. The continual processing of petitioner’s frivolous requests for extraordinary writs does not promote that end. Although we have not done so previously, lower courts have issued orders intended to curb serious abuses by persons proceeding in forma pauperis.8 Our order here prevents petitioner from proceeding in forma pauperis when seeking extraordinary writs from the Court.9 It is perhaps worth noting that we have not granted the sort of extraordinary writ relentlessly sought by petitioner to any litigant—paid or in forma pauperis—for at least a decade.

8 See, e. g., Procup v. Strickland, 792 F. 2d 1069 (CA11 1986); Peck v. Hoff, 660 F. 2d 371 (CA8 1981); Green v. Carlson, 649 F. 2d 285 (CA5 1981); cf. In re Martin-Trigona, 737 F. 2d 1254, 1261 (CA2 1984) (“Federal courts have both the inherent power and constitutional obligation to protect their jurisdiction from conduct which impairs their ability to carry out Article III functions”).

’Petitioner has repeatedly ignored the letter and spirit of this Court’s Rule 26, which provides in part that, “[t]o justify the granting of [an extraordinary writ], it must be shown that the writ will be in aid of the Court’s appellate jurisdiction, that there are present exceptional circumstances warranting the exercise of the Court’s discretionary powers, and that adequate relief cannot be had in any other form or from any other court.”

in re McDonald 185

180 Brennan, J., dissenting

We have emphasized that extraordinary writs are, not surprisingly, “drastic and extraordinary remedies,” to be “reserved for really extraordinary causes,” in which “appeal is clearly an inadequate remedy.” Ex parte Fahey, 332 U. S. 258, 259, 260 (1947).

Petitioner remains free under the present order to file in forma pauperis requests for relief other than an extraordinary writ, if he qualifies under this Court’s Rule 46 and does not similarly abuse that privilege.

Justice Brennan, with whom Justice Marshall, Jus - tice Blackmun, and Justice Stevens join, dissenting.

In the first such act in its almost 200-year history, the Court today bars its door to a litigant prospectively. Jessie McDonald may well have abused his right to file petitions in this Court without payment of the docketing fee; the Court’s order documents that fact. I do not agree, however, that he poses such a threat to the orderly administration of justice that we should embark on the unprecedented and dangerous course the Court charts today.

The Court’s denial not just of McDonald’s present petition but also of his right to file for extraordinary writs in forma pauperis in the future is, first of all, of questionable legality. The federal courts are authorized by 28 U. S. C. § 1915 to permit filings in forma pauperis. The statute is written permissively, but it establishes a comprehensive scheme for the administration of in forma pauperis filings. Nothing in it suggests we have any authority to accept in forma pauperis pleadings from some litigants but not from others on the basis of how many times they have previously sought our review. Indeed, if anything, the statutory language forecloses the action the Court takes today. Section 1915(d) explains the circumstances in which an in forma pauperis pleading may be dismissed as follows: a court “may dismiss the case if

Brennan, J., dissenting 489 U. S.

the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.” (Emphasis added.) This language suggests an individualized assessment of frivolousness or maliciousness that the Court’s prospective order precludes. As one lower court has put it, a court’s discretion to dismiss informa pauperis cases summarily “is limited ... in every case by the language of the statute itself which restricts its application to complaints found to be frivolous or malicious.” Sills v. Bureau of Prisons, 245 U. S. App. D. C. 389, 391, 761 F. 2d 792, 794 (1985) (emphasis added). Needless to say, the future petitions McDonald is barred from filing have not been “found to be” frivolous. Even a very strong and well-founded belief that McDonald’s future filings will be frivolous cannot render a before-the-fact disposition compatible with the individualized determination § 1915 contemplates.

This Court’s Rule 46 governs our practice in cases filed in forma pauperis. No more than § 1915 does it grant us authority to disqualify a litigant from future use of in forma pauperis status. Indeed, Rule 46.4 would seem to forbid such a practice, for it specifies that when the filing requirements described by Rule 46 are complied with, the Clerk “will file” the litigant’s papers “and place the case on the docket.” Today we order the Clerk to refuse to do just that. Of course we are free to amend our own rules should we see the need to do so, but until we do we are bound by them.

Even if the legality of our action in ordering the Clerk to refuse future petitions for extraordinary writs in forma pauperis from this litigant were beyond doubt, I would still oppose it as unwise, potentially dangerous, and a departure from the traditional principle that the door to this courthouse is open to all.

The Court’s order purports to be motivated by this litigant’s disproportionate consumption of the Court’s time and resources. Yet if his filings are truly as repetitious as it appears, it hardly takes much time to identify them as such.

in re McDonald 187

180 Brennan, J., dissenting

I find it difficult to see how the amount of time and resources required to deal properly with McDonald’s petitions could be so great as to justify the step we now take. Indeed, the time that has been consumed in the preparation of the present order barring the door to Mr. McDonald far exceeds that which would have been necessary to process his petitions for the next several years at least. I continue to find puzzling the Court’s fervor in ensuring that rights granted to the poor are not abused, even when so doing actually increases the drain on our limited resources. Cf. Brown v. Herald Co., 464 U. S. 928 (1983) (Brennan, J., dissenting). Today’s order makes sense as an efficiency measure only if it is merely the prelude to similar orders in regard to other litigants, or perhaps to a generalized rule limiting the number of petitions in forma pauperis an individual may file. Therein lies its danger.

The Court’s order itself seems to indicate that further measures, at least in regard to this litigant, may be forthcoming. It notes that McDonald remains free to file in forma pauperis for relief other than extraordinary writs, if he “does not similarly abuse that privilege.” Ante, at 185. But if we have found his 19 petitions for extraordinary writs abusive, how long will it be until we conclude that his 33 petitions for certiorari are similarly abusive and bar that door to him as well? I am at a loss to say why, logically, the Court’s order is limited to extraordinary writs, and I can only conclude that this order will serve as precedent for similar actions in the future, both as to this litigant and to others.

I doubt—although I am not certain—that any of the petitions Jessie McDonald is now prevented from filing would ultimately have been found meritorious. I am most concerned, however, that if, as I fear, we continue on the course we chart today, we will end by closing our doors to a litigant with a meritorious claim. It is rare, but it does happen on occasion that we grant review and even decide in favor of a litigant who previously had presented multiple unsuc-

Brennan, J., dissenting 489 U. S.

cessful petitions on the same issue. See, e. g., Chessman v. Teets, 354 U. S. 156 (1957); see id., at 173-177 (Douglas, J., dissenting).

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.

For the reasons stated in Brown n. Herald Co., supra, I would deny the petition for a writ of habeas corpus without reaching the merits of the motion to proceed in forma pauperis. For the reasons stated above, I dissent from the Court’s order directing the Clerk not to accept future petitions in forma pauperis for extraordinary writs from this petitioner.