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January 11, 1994

JAMES F. STEHOUWER, Plaintiff(s),
MICHAEL HENNESSEY, Sheriff, et al., Defendant(s). STEVE OLIVARES, Plaintiff(s), v. CHARLES D. MARSHALL, Warden, et al., Defendant(s).

The opinion of the court was delivered by: WALKER

 On May 25, 1993, the court issued an order in each of the above-captioned civil rights cases requiring plaintiffs to pay a partial filing fee or, in the alternative, to show cause why partial payment should not be required. On July 16, 1993, plaintiffs' counsel made a special appearance before the court, solely for the purpose of challenging the partial fee requirement. In plaintiffs' response to the order to show cause, they argued that a partial filing fee is unauthorized and, in any case, is inappropriate in their respective cases. Although defendants had not yet been served, the court invited them to submit memoranda on the issue. Plaintiffs replied, and oral argument was heard by the court. The court then awaited the Ninth Circuit's decision in Alexander v Carson Adult High School, 9 F.3d 1448, 1993 U.S. App. LEXIS 30947 (9th Cir 1993).

 For the reasons discussed below, plaintiffs are hereby ORDERED to pay partial filing fees as set forth in this order.


 Litigants in the federal courts receive a substantial subsidy from taxpayers. Although data for the entire federal court system are apparently unavailable, figures from the operation of the Northern District of California are nonetheless illustrative of this point. And because the experience of the Northern District is likely to be typical of that of other districts, it appears probable that federal litigation as a whole is primarily funded by tax revenues.

 The total operating expenses of this district for the twelve months ended September 30, 1993, were $ 22.75 million. *fn1" Assuming that two-thirds of these services were devoted to civil cases, *fn2" approximately $ 15.24 million of these expenses can be attributed to the civil docket. During the same fiscal year, the court received and deposited into the Treasury approximately $ 445,000 in civil filing fees. This revenue, along with other fees authorized 28 U.S.C. § 1915(b), defrays only about 3% of the expenses associated with civil suits. Given that 5,530 civil suits were filed during the above fiscal year, the expense per civil case amounts to almost $ 2,800.

 Many potential litigants do not possess sufficient liquid funds to pay the $ 120 filing fee necessary to receive this subsidy. *fn3" Because of the possibility that some of these potential litigants may have colorable federal claims, Congress has delegated to the district courts the authority to enlarge the already substantial subsidy afforded by § 1914 even further. Specifically, a litigant "who makes affidavit that he is unable to pay such costs or give security therefor" is permitted to proceed without prepaying the filing fee. 28 U.S.C. § 1915(a). It is not clear, however, why Congress has conferred upon individual judges the power to augment the § 1914 litigation subsidy in this manner. Nor is it clear why Congress did not specify or limit the amount of taxpayers' money that could be devoted to the § 1915 supplemental subsidy. This is particularly puzzling given that Congress does limit the § 1914 subsidy, by setting the courts' annual appropriations and prohibiting them from collecting additional revenues. 28 U.S.C. § 1914(b). Given that Congress itself appropriates funds for the § 1915 subsidy, Congress has essentially given the federal courts an unlimited budget.

 Plainly, there were alternatives which Congress could have adopted. An administrative body or magistrate judges adhering to certain clearly defined standards could just as well decide whether an individual litigant deserves the § 1915 supplemental subsidy. Indeed, a disinterested third party might make a better decision than the very judge who is responsible for handling the case. After all, a judge has somewhat conflicting interests in whether the litigation should proceed: on the one hand, of course, granting a fee waiver means more work for the judge; at the same time, the judge is constrained by his oath to "do equal right to the poor and the rich," 28 U.S.C. § 453, and in any event, the additional cases of the federal courts' dockets creates a public impression of overworked courts, which in turn facilitates the judiciary's attempts to secure greater appropriations, more judgeships, etc., from Congress. It seems likely that Congress--which is hardly oblivious to such collisions of self-interest and responsibility--conceived that individual judges could nonetheless be trusted to make these decisions with reasonable prudence to the taxpayers and fairness to the potential litigants. Judicial self-restraint in granting the prepayment waiver was apparently chosen over any explicit spending limitation.

 When only the rare litigant sought to proceed without prepayment of the filing fee, the revenues lost to the Treasury by the over-generous granting of fee waivers, and the added burdens to the courts and defendants were fairly trivial in magnitude. Under those circumstances, the absence of systematic processing of fee waiver applications posed little difficulty. It is not apparent that this continues to be the case. According to information compiled by the clerk of this court, in the twelve months ending September 30, 1993, 1,349 of the 5,530 civil cases (or 24%) filed in this district were accompanied by an application to waive prepayment of fees. Although the records regularly maintained by the judiciary do not reflect how many of these applications were granted, it is plain that this constitutes a high percentage. *fn4"

 These cases in which litigants receive the § 1915 subsidy are not an insignificant burden on the courts. According to a study recently completed by the Federal Judicial Center, 27% of judicial work hours are devoted to civil rights cases, the most common form of action in which a § 1915 prepayment waiver is requested. It follows from these data that a large part of the resources of the federal courts is consumed in handling cases which receive the supplemental litigation subsidy of § 1915.

 One may question whether federal courts are best suited for such litigation. Federal courts are generally located farther away from most citizens than are the state courts, therefore requiring litigants to travel further for their day in court. Additionally, litigation in federal court requires the parties to familiarize themselves with federal procedures, which are oftentimes more complex than the state counterparts. Moreover, despite being labelled as actions seeking vindication of federal civil rights, most of these cases involve the most intensely local concerns. For these and other reasons, Congress has recognized that certain types of suits typically accompanied by § 1915 petitions should pass through alternative dispute resolution ("ADR") mechanisms prior to arrival in federal court. *fn5" Many of these cases, no doubt, are resolved in these ADR proceedings and many more could be resolved by more vigorous use of such proceedings.

 Undoubtedly, there are many types of civil cases for which the decision to file suit is largely unaffected by the § 1915 subsidy. Most plaintiffs face significant costs in bringing suit, two of which are attorney fees and the interruption of jobs and other daily responsibilities. Confronted with these expenses, the ordinary plaintiff is ...

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