6260) v. J. RAY ORMOND, Warden

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit I.O.P. 32.1(b)
File Name: 19a0034p.06
UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
DAVID SAMARRIPA (17-6048/6260); STEPHON MASON
(17-6166); JOSE ADRIAN HERNANDEZ (17-6213);
ARNULFO TORRES PEREZ (17-6299); TIMMIE D. COLE,
SR. (17-6333),
Petitioners-Appellants,
v.
J. RAY ORMOND, Warden,
Respondent-Appellee.
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Nos: 17-6048/6166/6213/6260/6299/6333
Appeal from the United States District Court for the Eastern District of Kentucky at London;
No. 6:17-cv-00086—Danny C. Reeves, District Judge;
Nos. 6:17-cv-00072 & 6:17-cv-00082—Karen K. Caldwell, Chief District Judge;
No. 6:17-cv-00081—David L. Bunning, District Judge;
No. 6:17-cv-00150—Gregory F. Van Tatenhove, District Judge.
Argued: January 30, 2019
Decided and Filed: March 4, 2019
Before: SUTTON, GRIFFIN, and LARSEN, Circuit Judges.
_________________
COUNSEL
ARGUED: Katherine B. Wellington, HOGAN LOVELLS US LLP, Washington, D.C., for
Appellants. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. James R. Saywell, JONES DAY, Cleveland, Ohio, as Amicus
Curiae. ON BRIEF: Katherine B. Wellington, HOGAN LOVELLS US LLP, Washington,
D.C., for Appellants. Edward Himmelfarb, UNITED STATES DEPARTMENT OF JUSTICE,
Washington, D.C., for Appellee. James R. Saywell, JONES DAY, Cleveland, Ohio, as Amicus
Curiae.
>

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_________________
OPINION
_________________
SUTTON, Circuit Judge. Indigent individuals may seek permission in the district court
to appeal adverse judgments without prepayment of appellate filing fees. At issue in today’s five
consolidated cases, each filed under 28 U.S.C. § 2241, is whether district courts may grant such
motions in part by requiring litigants to prepay some, but not all, of the $505 appellate court
filing fee. The law at issue says that a federal court “may authorize the commencement,
prosecution or defense of any suit, action or proceeding, civil or criminal, or appeal therein,
without prepayment of fees” by a person who “is unable to pay such fees.” 28 U.S.C.
§ 1915(a)(1). Nothing about this language deprives a district court of discretion to require partial
prepayment of appellate filing fees, and nothing about it alters the pre-1996-amendment practice
of doing just that. For these reasons and those elaborated below, we agree with the district
courts’ partial fee rulings.
I.
David Samarripa, Stephon Mason, Jose Hernandez, Arnulfo Perez, and Timmie Cole—
federal prisoners all—filed petitions for a writ of habeas corpus under 28 U.S.C. § 2241, arguing
that their respective sentences are too long under federal law. All five men paid the $5 habeas
filing fee in the district court. Id. § 1914(a). And each of them lost his petition on the merits.
Each man filed a timely notice of appeal and a motion to proceed as a pauper on appeal, seeking
to avoid prepaying the $505 appellate filing fee. Id. §§ 1913, 1917. After examining each
petitioner’s financial status, the district courts granted the motions in part under § 1915(a)(1),
requiring each petitioner to make a one-time, partial prepayment of the fee: $50 for Samarripa
and Cole, $350 for Hernandez, and $400 for Mason and Perez.
Each of them renewed his motion in this court, in effect challenging the district courts’
determinations. See Fed. R. App. P. 24(a)(5) and advisory committee’s note. We consolidated
the five motions to consider whether federal courts have the statutory authority to require

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petitioners to prepay a partial filing fee on appeal of a § 2241 petition. We appointed Katherine
Wellington to represent the claimants pro bono.
Before this court, the claimants and the government agreed that the district courts had no
such authority. We appointed James Saywell as amicus curiae to file a brief in defense of the
district courts’ orders. Both Ms. Wellington and Mr. Saywell ably handled their appointments,
for which we are grateful.
II.
At stake is whether the law permits partial prepayment of fees or requires an all-or-
nothing-at-all approach. The text of § 1915(a)(1) says: “[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 or security therefor, by a person,” based
on the court’s review of the person’s assets and claim. (Emphasis added). The key language—
“may authorize” and “without prepayment of fees”—does not answer the question. A court that
excuses all fees or some fees still allows a filing “without prepayment of fees.” Ample room for
clarification exists in either direction. Had the law said that courts “shall authorize” litigants to
proceed “without prepayment of any fees,” that would clarify that courts face a $505 or a $0
option with nothing in between. Had the law said that courts “may” allow litigants to proceed
“without prepayment of some or all fees,” that would clarify that courts could permit partial
prepayments depending on the person’s particular financial situation. Absent more textual
guidance from these words alone, we must keep looking.
Pulling back the lens offers some guidance. The clause immediately following the key
language (“without prepayment of fees or security therefor”) implies that courts may require
litigants to post something as security for the filing fees in an appropriate case. Security for costs
falls within a court’s broad discretion. See United States v. Ames, 99 U.S. 35, 36 (1878);
Aggarwal v. Ponce Sch. of Med., 745 F.2d 723, 726–27 (1st Cir. 1984). It would be strange, we
think, to pair a non-discretionary item with an eminently discretionary one. The pairing suggests
that the same kind of discretion that accompanies “security” decisions applies to “prepayment of
fees” decisions.

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As for the other relevant provision, Appellate Rule 24, it does not answer the question
either way. In setting out a procedure for seeking pauper status on appeal, it tells the party to file
the motion in the district court. If the court grants the motion, the party may proceed as a pauper
on appeal without prepayment. Fed. R. App. P. 24(a)(2). If the district court denies the motion,
the party may file the motion in the court of appeals, in effect challenging the district court’s
decision. Id. 24(a)(5). The Rule contemplates granting or denying these motions. Id. 24(a)(2).
But it does not rule in or rule out discretion in between.
History helps. By the time Congress amended the pauper statute in 1996, every circuit to
address the issue had held that § 1915(a)—in place since 1892—allowed courts to require parties
to prepay part of the filing fees. In re Epps, 888 F.2d 964, 967 (2d Cir. 1989); Bullock v.
Suomela, 710 F.2d 102, 103 (3d Cir. 1983); Evans v. Croom, 650 F.2d 521, 524–25 (4th Cir.
1981); Williams v. Estelle, 681 F.2d 946, 947 (5th Cir. 1982) (per curiam); McMurray v.
McWherter, 19 F.3d 1433 (6th Cir. 1994) (unpublished table decision); Lumbert v. Ill. Dep’t of
Corr., 827 F.2d 257, 259–60 (7th Cir. 1987); In re Williamson, 786 F.2d 1336, 1338 (8th Cir.
1986); Olivares v. Marshall, 59 F.3d 109, 111 (9th Cir. 1995); Stack v. Stewart, 82 F.3d 426
(10th Cir. 1996) (unpublished table decision); Collier v. Tatum, 722 F.2d 653, 655 (11th Cir.
1983). Noting the breadth of discretion in the statute’s terms, the courts construed the broad
power to waive any prepayment of all fees to encompass the lesser power to waive prepayment
of some fees. See, e.g., In re Epps, 888 F.2d at 967; Olivares, 59 F.3d at 111.
When Congress amended the statute in 1996, it did not meaningfully change the text of
§ 1915(a)(1). That reality permits the inference that Congress did not wish to change what had
become a uniform practice of permitting courts to require indigent litigants to prepay some but
not all of the fee.
Context offers another clue, and it too arose from the 1996 amendments. Just as
important as what Congress did not do in 1996 is something it did do: It enacted the Prison
Litigation Reform Act. In the PLRA, Congress took away judicial discretion when prisoners
bring civil suits or file appeals. In those cases, “the prisoner shall be required to pay the full
amount of a filing fee.” 28 U.S.C. § 1915(b)(1). The court must assess an initial fee calculated

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as 20% of either the average monthly deposits to the prisoner’s account or the average balance in
the account over the previous six months. Id. § 1915(b)(1)(A), (B). Prisoners then make precise
monthly payments until they pay the fee in full. Id. § 1915(b)(2). Congress’s limit of discretion
in this one area, while leaving § 1915(a)(1) substantially the same, suggests no alteration to the
court’s discretion to require partial prepayment in other cases under § 1915(a)(1). And
Congress’s decision to clamp down on judicial discretion in one area of prisoner litigation while
leaving untouched plenty of discretion in another area suggests an intentional choice. Different
language about a similar topic suggests a difference in meaning. Gross v. FBL Fin. Servs., Inc.,
557 U.S. 167, 174–75 (2009).
What happens with costs at the end of a case provides another contextual clue about what
should happen with filing fees at the beginning of a case. Section 1915(f)(1) provides that
“[j]udgment may be rendered for costs at the conclusion of the suit or action as in other
proceedings.” The general costs statute, 28 U.S.C. § 1920, says that a court “may tax” certain
items “as costs.” Courts consider several equitable factors to guide their discretion in
determining the propriety and amount of that assessment. See Singleton v. Smith, 241 F.3d 534,
539–40 (6th Cir. 2001). That means courts have discretion to assess costs, including filing fees,
against losing litigants after the case even if those litigants proceed as paupers. Id. at 539–41.
No court to our knowledge has interpreted this statute to limit district court discretion to an all-
costs-or-no-costs-at-all inquiry. If Congress gives courts broad discretion over fees on the back
end of a pauper’s case (and over cost assessments in general), it’s fair to infer that it wishes
equally permissive language on the front end of a pauper’s case to be read in a like way. When
asked “who decides” fee requirements for paupers within the statutory range, Congress answered
“courts” and gave them ample discretion to see it through from the beginning to the end of the
case.
When faced with this issue, the Seventh Circuit in an opinion by Judge Easterbrook took
the same approach, holding that courts may require partial prepayment under § 1915(a)(1). See
Longbehn v. United States, 169 F.3d 1082 (7th Cir. 1999). Appreciating that courts often
required partial prepayment before Congress amended the statute in 1996, the Seventh Circuit
concluded there was no reason why courts couldn’t require partial prepayment after the PLRA in

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cases not covered by the PLRA. Id. at 1083. Baked into the courts’ discretion in this area, it
reasoned, is the idea that “every litigant has a legal responsibility to pay the filing and docketing
fees to the extent feasible,” whether that happens before or after the case. Id. The court
approved the district court’s discretionary decision to borrow the PLRA’s 20% formula for
determining the requisite prepayment in that habeas appeal. Id. at 1083–84.
The claimants and the United States oppose this conclusion on several grounds. First,
they argue that the text of § 1915(a)(1) supports their approach. Yes, it’s true, the text is silent
about allowing partial prepayment of fees. But it is just as silent in the other direction. Saying
that a court “may authorize” a filing “without prepayment of fees” does not say one way or the
other whether all fees may be forgiven or just some. A court order that the litigant pay 20% of
the fees still amounts to an order authorizing the filing “without prepayment of fees.”
Garza v. Thaler, 585 F.3d 888 (5th Cir. 2009) (per curiam), we acknowledge, took a
different approach. But it’s not convincing, and it did not consider many of these arguments.
The district court granted Garza’s motion to proceed as a pauper on his habeas appeal but, in its
discretion, required him to pay the full filing fee according to the PLRA’s statutory formula. The
Fifth Circuit reversed, reasoning that the court had no authority to “grant” Garza’s motion and
still require him to pay in accordance with the terms of the PLRA. Id. at 890. Garza viewed the
district court’s choice under § 1915(a)(1) as binary: Either grant pauper status and require no
prepayment, or deny pauper status and require full prepayment. But, as shown, Congress
contemplated giving courts discretion when it comes to requiring litigants to pay some or all of
the filing fees, before the suit and after it ends. See § 1915(a)(1), (f)(1). Garza also failed to
consider the breadth of discretion in § 1915(a)(1)’s text, the history of courts interpreting it to
allow partial prepayment, and the statutory context. Each point undercuts Garza’s holding.
Our case for what it is worth differs from Adkins v. E.I. DuPont de Nemours & Co., 335
U.S. 331 (1948). It held that courts could not require a party’s attorneys to establish their
inability to pay fees before deciding whether to grant the party pauper status. Id. at 340–44.
Section 1915(a) did not allow for such “surprising legislative innovation” by the court. Id. at
341. It required instead that the litigant herself establish an inability to pay the fee. Unlike the

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court’s innovations in that case, today’s conclusion—that courts may require partial
prepayments—attends to the text, context, and history of the relevant provisions.
The claimants also argue that Rule 24 limits courts’ discretion to take-it-or-leave-it grants
or denials. That Rule’s procedures (filing a motion in the court of appeals as a way to challenge
the district court’s decision) would not make sense, they say, if courts could require partial
prepayment. But nothing in the Rule prevents district courts or courts of appeals from granting
in part and denying in part a party’s motion, thereby requiring or allowing partial prepayment.
The claimants and the government argue that the PLRA in 1996 abrogated any authority
for courts to require partial prepayment under § 1915(a)(1). At that point, they note, Congress
provided a highly reticulated system for requiring payment from prisoners in civil cases, which
includes partial prepayment. Because § 1915(a)(1) includes no such language, they claim that
Congress made a structural decision not to allow partial prepayment for cases not covered by the
PLRA. But that observation turns into the wind rather than with it. Both the claimants and the
government think the PLRA does not apply here. So when Congress clearly took away judicial
discretion over the subset of cases covered by the PLRA, it left unscathed the broad discretionary
language that still applies to other cases.
They next point to language in the Criminal Justice Act, which allows courts to make a
person who receives appointed counsel under that Act liable for “partial payment for [court-
appointed] representation” if he “is financially able.” 18 U.S.C. § 3006A(c). No doubt,
Congress could have used that language—“partial payment”—to clarify the pauper statute, but
we don’t think the difference between that language and this language makes the dent the parties
think it does. Far more persuasive, we think, to focus on similarities in language between direct
relatives (28 U.S.C. § 1915(a)(1) and 28 U.S.C. § 1915(f)(1)) than differences in language
between kissing cousins (28 U.S.C. § 1915(a)(1) and 18 U.S.C. § 3006A(c)).
Last of all, they argue that an all-in-or-all-out system would be more administrable by
giving courts fewer options than a partial prepayment alternative. But see, e.g., In re Epps,
888 F.2d at 967; Olivares, 59 F.3d at 111. One could fairly argue the point either way. But it
doesn’t change the language, history, and context of the provision. Congress gave courts wide

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latitude in determining when and how much to require litigants to pay before and after their
cases.
That’s the hard part. Resolution of the merits of each motion is relatively easy. After
examining each claimant’s financial status, the district courts determined the appropriate partial
prepayment. Before us, the claimants must provide “the district court’s statement of reasons for
its action” with their motions. Fed. R. App. P. 24(a)(5). We give some deference to the district
court’s determinations about each claimant’s ability to pay. See Flippin v. Coburn, 107 F. App’x
520, 521 (6th Cir. 2004). None of the claimants has identified any error in the district courts’
decisions, and we see no warrant for questioning them either. We thus will require prepayment
of the same amounts of the appellate filing fees as each district court required: $50 for
Samarripa and Cole, $350 for Hernandez, and $400 for Mason and Perez.
III.
The district courts resolved this filing-fee question under § 1915(a)(1) rather than one of
the amendments in the PLRA, now codified at § 1915(b) and (g). In their briefs before us, the
claimants and the United States agree that the PLRA does not apply to habeas petitions filed
under § 2241, and all five district courts in these cases said or assumed that the PLRA does not
apply. That turns out to be a more complicated question than first meets the eye, and the amicus
curiae has offered a thoughtful argument, one to our knowledge not made within our circuit
before, that the PLRA covers this filing-fee question. While we need not resolve the point today,
it is worth setting forth the argument, as it may be useful to future litigants or courts.
The PLRA’s mandatory fee-payment scheme applies “if a prisoner brings a civil action or
files an appeal in forma pauperis.” § 1915(b)(1). As the amicus curiae sees it, the text and
context of this language establish that the PLRA applies to all appeals of habeas petitions,
whether filed under § 2241 or for that matter 28 U.S.C. §§ 2254 or 2255. As for the text, the
provision applies when a prisoner “files an appeal in forma pauperis.” § 1915(b)(1). There
appears to be no modifier limiting this language to a subset of pauper appeals. It seems to cover
each and every one. See Walker v. O’Brien, 216 F.3d 626, 641 (7th Cir. 2000) (Easterbrook, J.,
dissenting from the denial of rehearing en banc).

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Context, too, offers support for this reading. In several places throughout § 1915,
Congress used more specific language to refer to subsets of appeals. Two subsections,
§ 1915(a)(2) and (g), apply only when a prisoner “bring[s] a civil action or appeal[s] a judgment
in a civil action.” Section 1915(b)(3) applies to “a civil action or an appeal of a civil action or
criminal judgment,” and § 1915(b)(4) covers “bringing a civil action or appealing a civil or
criminal judgment.” Congress’s use of modifiers to limit the kinds of appeals to which these
subsections apply may suggest that it meant § 1915(b)(1) to cover all appeals.
We recognize that each circuit to address the issue has said that the PLRA does not apply
to habeas appeals. See Reyes v. Keane, 90 F.3d 676, 678 (2d Cir. 1996); Santana v. United
States, 98 F.3d 752, 756 (3d Cir. 1996); Pfeffer v. McBride, 241 F. App’x 910, 910 (4th Cir.
2007) (per curiam); United States v. Cole, 101 F.3d 1076, 1077–78 (5th Cir. 1996); Kincade v.
Sparkman, 117 F.3d 949, 951 (6th Cir. 1997); Martin v. United States, 96 F.3d 853, 854–55 (7th
Cir. 1996); Malave v. Hedrick, 271 F.3d 1139, 1139–40 (8th Cir. 2001) (per curiam); Naddi v.
Hill, 106 F.3d 275, 277 (9th Cir. 1997); United States v. Simmonds, 111 F.3d 737, 744 (10th Cir.
1997); Anderson v. Singletary, 111 F.3d 801, 805 (11th Cir. 1997); Blair-Bey v. Quick, 151 F.3d
1036, 1040 n.2 (D.C. Cir. 1998).
But many of those courts, including ours, do not account for the “or files an appeal”
language in § 1915(b)(1). See, e.g., Kincade, 117 F.3d at 950–51. And those that attend to this
language suggest that “civil” must modify both “action” and “appeal,” such that the PLRA
applies only to civil appeals. See, e.g., Reyes, 90 F.3d at 678; Martin, 96 F.3d at 854–55. But
that is not self-evident. The adjective “civil” assuredly would modify both “action” and “appeal”
if the statute said “brings a civil action or appeal.” That would make it similar to the prohibition
of “unreasonable searches and seizures,” U.S. Const. amend. IV, or to the Alabama Supreme
Court’s ruling that “intoxicating bitters or beverages” means intoxicating bitters and intoxicating
beverages, Ex parte State ex rel. Att’y Gen., 93 So. 382, 383 (Ala. 1922). See Antonin Scalia &
Bryan A. Garner, Reading Law 147–48 (2012). But this language differs: “brings a civil action
or files an appeal.” § 1915(b)(1). The repeated determiner (“an”) after the disjunctive
conjunction (“or”) and a different verb (“files”) may suggest that civil does not modify appeal.
Scalia & Garner, Reading Law 148–49. That Congress used different language to specify

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subsets of appeals in other provisions of § 1915 also raises questions about the prevailing
approach.
Some of these prior decisions rely on context as support for this interpretation. See, e.g.,
Simmonds, 111 F.3d at 744. If the PLRA applies, they note, courts determine the appropriate
initial and monthly filing fees based on the balance of the prisoner’s trust fund account.
§ 1915(b)(1), (2). But § 1915(a)(2) requires prisoners to provide the court a copy of their trust
fund account statements only when filing a civil action or a civil appeal. It doesn’t make sense,
this argument continues, to require only civil-prisoner appellants to file account statements when
courts will need to know information about the accounts for all prisoners’ pauper appeals. See
Simmonds, 111 F.3d at 744. All true and all helpful to that position. But does the point suffice
to counter the text, especially since § 1915(a)(2) refers to civil appeals by name and § 1915(b)(1)
does not?
Also driving the prevailing approach seems to be a concern about the impact of the
PLRA’s three-strikes rule on habeas petitions. The PLRA prevents a prisoner from bringing a
civil action or a civil appeal as a pauper if he has, while imprisoned, previously brought three
actions or appeals that courts dismissed as “frivolous, malicious, or [for] fail[ure] to state a
claim.” 28 U.S.C. § 1915(g). Many of these courts find it hard to believe that Congress would
limit the availability of habeas relief for inmates who had filed three frivolous § 1983 actions,
especially since Congress enacted AEDPA (which places limits on habeas review) at the same
time. See, e.g., Kincade, 117 F.3d at 950–51; Martin, 96 F.3d at 854–56. We share those
concerns. But they may not apply here: The three-strikes provision applies only to civil appeals,
while § 1915(b)(1) appears to apply to all appeals. That means the three-strikes provision would
present a problem for habeas claimants only if a habeas petition is invariably a “civil” claim.
That may or may not be true. Although we characterize habeas actions as non-criminal
proceedings and thus as civil proceedings in one sense, Fisher v. Baker, 203 U.S. 174, 181
(1906), that “label” can be “gross and inexact” in some settings, Harris v. Nelson, 394 U.S. 286,
293–94 (1969). Habeas “is unique.” Id. at 294. Especially when a habeas petition is used to
collaterally attack a criminal judgment, as in this case, habeas may not fit neatly into the civil or
criminal camp. See Martin, 96 F.3d at 855.

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Reading “appeal” to mean all appeals also raises a concern about the possibility that
indigent criminal defendants may not be able to pay the PLRA’s fees. But two statutory
provisions seem to go a long way in alleviating that fear. The PLRA itself says that a prisoner
won’t be “prohibited from bringing a civil action or appealing a civil or criminal judgment for
the reason that the prisoner has no assets and no means by which to pay the initial partial filing
fee.” § 1915(b)(4). On top of that, the Criminal Justice Act carves out an exception to the PLRA
for people who are appointed counsel under the Criminal Justice Act: They “may” appeal
“without prepayment of fees and costs or security therefor.” 18 U.S.C. § 3006A(d)(7). So it is,
generally speaking, that criminal defendants who can’t afford to pay for counsel or to pay the fee
won’t have to.
In Kincade, it is true, our court held that the PLRA does “not apply to cases or appeals
brought under” §§ 2254 and 2255. 117 F.3d at 951. But the decision did not address most of the
above arguments because they were not presented to the court.
On top of that, Kincade does not clearly tie anyone’s hands when it comes to § 2241
appeals. See Walker, 216 F.3d at 641–42 (Easterbrook, J., dissenting from the denial of
rehearing en banc) (proposing a different prepayment rule for at least some § 2241 petitions on
the one hand and §§ 2254 and 2255 petitions on the other). Even so, it’s worth pausing over
whether that dichotomy is worth the candle. Channeling fee waiver requests for §§ 2254 and
2255 petitions into one regime and fee waiver requests for § 2241 petitions into another not only
would complicate matters for clerks’ offices, but it wouldn’t help much if the applicant
simultaneously sought relief under § 2241 and one of the traditional collateral-relief provisions.
No less importantly, complications would arise when it was not clear what the proper label for
the claim was.
All of this must await another day and another case, one in which the parties squarely
present the arguments below. For now, we accept and agree with each district court’s approach
to the case.

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For these reasons, we deny the requests of the petitioners to lower their filing fees and
thus require them to pay the respective fees ordered by each district court within 28 days of this
decision.

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