OCTOBER TERM, 1992
Syllabus
ROWLAND, FORMER DIRECTOR, CALIFORNIA DEPARTMENT OF CORRECTIONS,
ET AL.
v. CALIFORNIA MEN'S COLONY, UNIT II MEN'S ADVISORY
COUNCIL
CERTIORARI TO THE UNITED STATES COURT OF APPEALS FOR THE NINTH
CIRCUIT
No. 91-1188. Argued October 6, 1992-Decided January 12, 1993
In a suit filed in the District Court against petitioner state
correctional officers, respondent, a representative association of
inmates in a California prison, sought leave to proceed
in forma
pauperis under 28 U. S. C. § 1915(a), which permits litigation
without prepayment of fees, costs, or security "by a person who
makes affidavit that he is unable to pay." The court denied the
motion for an inadequate showing of indigency. In reversing that
decision, the Court of Appeals noted that a "person" who may be
authorized to proceed
in forma pauperis under § 1915(a) may
be an "association" under the Dictionary Act, 1 U. S. C. § 1, which
in relevant part provides that "in determining the meaning of any
Act of Congress, unless the context indicates otherwise" " 'person'
" includes "associations" and other artificial entities such as
corporations and societies.
Held: Only a natural person may qualify for treatment
in forma pauperis under § 1915. Pp. 199-212.
(a) "Context," as used in 1 U. S. C. § 1, means the text of the
Act of Congress surrounding the word at issue or the texts of other
related congressional Acts, and this is simply an instance of the
word's ordinary meaning. Had Congress intended to point to a
broader definition that would include things such as legislative
history, it would have been natural to use a more spacious phrase.
In contrast to the narrow meaning of "context," "indication"
bespeaks something more than an express contrary definition,
addressing the situation where Congress provides no particular
definition, but the definition in § 1 seems not to fit. Pp.
199-20l.
(b) Four contextual features indicate that "person" in 28 U. S.
C. § 1915(a) refers only to individuals. First, the permissive
language used in § 1915(d)-that a "court may request an attorney to
represent any such person unable to employ counsel" (emphasis
added)-suggests that Congress assumed that courts would sometimes
leave the "person" to conduct litigation on his own behalf, and,
thus, also assumed that the "person" has the legal capacity to
petition the court for appointment of
195
counsel while unrepresented and the capacity to litigate
pro
se should the petition be denied. These assumptions suggest in
turn that Congress was thinking in terms of natural persons,
because the law permits corporations, see,
e. g., Osborn v.
President of Bank of United States, 9 Wheat. 738, 829, and
other artificial entities, see,
e. g., Eagle Associates v.
Bank of Montreal, 926 F.2d
1305, to appear in federal courts only through licensed
counsel. Second, § 1915(d) describes the affidavit required by §
1915(a) as an allegation of "poverty," which is a human condition
that does not apply to an artificial entity. Third, because
artificial entities cannot take oaths, they cannot make the
affidavits required in § 1915(a). It would be difficult to accept
an affidavit on the entity's behalf from an officer or agent in
this statutory context, since it would be hard to determine an
affiant's authorization to act on behalf of an amorphous legal
creature such as respondent; since the term "he" used in §
1915(a)'s requirement that the affidavit must state the "affiant's
belief that
he is entitled to redress" (emphasis added)
naturally refers to the "affiant" as the person seeking
in forma
pauperis status; and since the affidavit cannot serve its
deterrent function fully when applied to artificial entities, which
may not be imprisoned for perjurious statements. Fourth, § 1915
gives no hint of how to resolve the issues raised by applying an
"inability to pay" standard to artificial entities. Although the
"necessities of life" criterion cannot apply, no alternative
criterion can be discerned in § 1915's language and there is no
obvious analogy, including insolvency, to that criterion in the
organizational context. Nor does § 1915 guide courts in determining
when to "pierce the veil" of the entity, which would be necessary
to avoid abuse. Respondent's argument that there is no need to
formulate comprehensive rules in the instant case because it would
be eligible under any set of rules is rejected, since recognizing
the possibility of organizational eligibility would force this
Court to delve into difficult policy and administration issues
without any guidance from § 1915. Pp. 201-209.
(c) Section 1915 manifests no single purpose that would be
substantially frustrated by limiting the statutory reach to natural
persons.
Wilson v.
Omaha Tribe, 442 U. S. 653, 666;
United States v.
A &
P Trucking Co.,
358 U. S. 121,
distinguished. In addition, denying respondent
in forma
pauperis status would not place an unconstitutional burden on its
members' First Amendment rights to associate by requiring them to
demonstrate their indigency status, since a court could hardly
ignore the assets of an association's members in making an
indigency determination for the organization. Pp. 209-212.
939 F.2d
854, reversed and remanded.
196
SOUTER, J., delivered the opinion of the Court, in which
REHNQUIST, C. J., and WHITE, O'CONNOR, and SCALIA, JJ., joined.
KENNEDY, J., filed a dissenting opinion,
post, p. 212.
THOMAS, J., filed a dissenting opinion, in which BLACKMUN, STEVENS,
and KENNEDY, JJ., joined,
post, p. 212.
James Ching, Supervising Deputy Attorney General of
California, argued the cause for petitioners. With him on the
briefs were
Daniel E. Lungren, Attorney General,
George
Williamson, Chief Assistant Attorney General,
Kenneth C.
Young, Assistant Attorney General, and
Joan W
Cavanagh, Supervising Deputy Attorney General.
Charles D. Weisselberg argued the cause for
respondent.
With him on the briefs were Michael J. Brennan, Dennis E.
Curtis, and Denise Meyer.
JUSTICE SOUTER delivered the opinion of the Court.
Title 28 U. S. C. § 1915, providing for appearances
in forma
pauperis, authorizes federal courts to favor any "person"
meeting its criteria with a series of benefits including
dispensation from the obligation to prepay fees, costs, or security
for bringing, defending, or appealing a lawsuit. Here, we are asked
to decide whether the term "person" as so used applies to the
artificial entities listed in the definition of that term contained
in 1 U. S. C. § 1. We hold that it does not, so that only a natural
person may qualify for treatment
in forma pauperis under §
1915.
I
Respondent California Men's Colony, Unit II Men's Advisory
Council (Council), is a representative association of prison
inmates organized at the behest of one of the petitioners, the
Warden of the Colony, to advise him of complaints and
recommendations from the inmates, and to communicate his
administrative decisions back to them. The general prison
population elects the Council's members.
In a complaint filed in the District Court in 1989, the Council
charged the petitioners, state correctional officers, with
197
violations of the Eighth and Fourteenth Amendments in
discontinuing their practice of providing free tobacco to indigent
inmates. The Council sought leave to proceed
in forma
pauperis under 28 U. s. C. § 1915(a), claiming by affidavit of the
Council's chairman that the warden forbad the Council to hold funds
of its own. The District Court denied the motion for an inadequate
showing of indigency, though it responded to the Council's motion
for reconsideration with a suggestion of willingness to consider an
amended application containing "details of each individual's
indigency."
On appeal, the Council was allowed to proceed
in forma
pauperis to enable the court to reach the very question
"whether an organization, such as [the Council], may proceed in
forma pauperis pursuant to 28 U. s. C. § 1915(a)." No. 90-55600
(CA9, July 20, 1990). The court requested that a lawyer represent
the Council pursuant to 28 U. s. C. § 1915(d).1
The Court of Appeals reversed,
939 F.2d
854 (CA9 1991), noting that a "person" who may be authorized by
a federal court to proceed
in forma pauperis under § 1915(a)
may be an "association" under a definition provided in 1 U. s. C. §
1. The Council being an "association," it was a "person" within the
meaning of § 1915(a), and could proceed
in forma pauperis
upon the requisite proof of its indigency. The court found it
adequate proof that prison regulations prohibited the Council from
maintaining a bank account, and, apparently, from owning any other
asset.
We granted certiorari, 503 U. S. 905 (1992), to resolve a
conflict between that decision and the holding in FDM
Manufacturing Co. v.
Scottsdale Ins. Co., 855 F.2d
213 (CA5 1988)
(per curiam) ("person," within the
meaning of § 1915(a), includes only natural persons). We
reverse.
1 For a description of § 1915(d) and its relationship to §
1915(a), see
infra, at 198, 203.
198
II A
Both § 1915(a), which the Council invoked in seeking to be
excused from prepaying filing fees, and § 1915(d) employ the word
"person" in controlling access to four benefits provided by § 1915
and a related statute. First, a qualifying person may "commenc[e],
prosecut[e] or defen[d] ... any suit, action or proceeding, civil
or criminal, or appeal therein, without prepayment of fees and
costs or security therefor." 28 U. S. C. § 1915(a). Second, a court
may in certain cases direct the United States to pay the person's
expenses in printing the record on appeal and preparing a
transcript of proceedings before a United States magistrate. §
1915(b). Third, if the person is unable to employ counsel, "[t]he
court may request an attorney to represent [him]." § 1915(d). And,
fourth, in an appeal, the United States will pay for a transcript
of proceedings below "if the trial judge or a circuit judge
certifies that the appeal is not frivolous (but presents a
substantial question)." 28 U. S. C. § 753(f); see
ibid.
(detailing slightly different criteria for habeas proceedings).
"Persons" were not always so entitled, for the benefits of §
1915 were once available only to "citizens," a term held, in the
only two cases on the issue, to exclude corporations. See
Atlantic S. S.
Corp. v.
Kelley, 79 F.2d 339,
340 (CA5 1935) (construing the predecessor to § 1915);
Quittner v.
Motion Picture Producers &
Distributors of America, Inc., 70 F. 2d 331, 332 (CA2 1934)
(same). In 1959, however, Congress passed a one-sentence provision
that "section 1915(a) of title 28, United States Code, is amended
by deleting the word 'citizen' and inserting in place thereof the
word 'person.'" Pub. L. 86-320, 73 Stat. 590. For this amendment,
the sole reason cited in the legislative history was to extend the
statutory benefits to aliens.2
2 The House Report noted three reasons for "extend[ing] the same
privilege of proceedings in forma pauperis as is now afforded
citizens." H. R. Rep. No. 650, 86th Cong., 1st Sess., 2 (1959).
First, "[i]t is the opinion of
199
B
The relevant portion of the Dictionary Act, 1 U. S. C. § 1,
provides (as it did in 1959) that
"[i]n determining the meaning of any Act of Congress, unless the
context indicates otherwise-
"the wor[d] 'person' ... include[s] corporations, companies,
associations, firms, partnerships, societies, and joint stock
companies, as well as individuals."
See 1 U. S. C. § 1 (1958 ed.). "Context" here means the text of
the Act of Congress surrounding the word at issue, or the texts of
other related congressional Acts, and this is simply an instance of
the word's ordinary meaning: "[t]he part or parts of a discourse
preceding or following a 'text' or passage or a word, or so
intimately associated with it as to throw light upon its meaning."
Webster's New International Dictionary 576 (2d ed. 1942). While
"context" can carry a secondary meaning of "[a]ssociated
surroundings, whether material or mental," ibid., we doubt that the
broader sense applies here. The Dictionary Act uses "context" to
give an
the Department of Justice that this proposal would be consonant
with the ideas or policies of the United States."
Ibid.
Second, "the Judicial Conference of the United States in
recommending this legislation pointed out that the distinction
between citizens and aliens as contained in existing law may be
unconstitutional."
Ibid. Third, "it may also be in violation
of various treaties entered into by the United States with foreign
countries which guarantees [sic] to their citizens access of the
courts of the United States on the same terms as American
citizens."
Ibid.; see also S. Rep. No. 947, 86th Cong., 1st
Sess., 2 (1959) (quoting the portion of the House Report containing
these three reasons). None of these reasons supports extension of §
1915 benefits to artificial entities, or suggests that anyone
involved with drafting or evaluating this legislation was thinking
of such an extension. The House debate on the bill contains a
discussion about the deportation of alien criminals, a matter which
obviously concerns only natural persons, see 105 Congo Rec. 13714
(1959) (remarks of Rep. Gross and Rep. Rogers); otherwise, the
congressional debates provide no additional information, see
ibid.; id., at 18909 (remarks of Sen. Eastland).
200
instruction about how to "determin[e] the meaning of a[n] Act of
Congress," a purpose suggesting the primary sense. If Congress had
meant to point further afield, as to legislative history, for
example, it would have been natural to use a more spacious phrase,
like "evidence of congressional intent," in place of "context."
If "context" thus has a narrow compass, the "indication"
contemplated by 1 U. S. C. § 1 has a broader one. The Dictionary
Act's very reference to contextual "indication" bespeaks something
more than an express contrary definition, and courts would hardly
need direction where Congress had thought to include an express,
specialized definition for the purpose of a particular Act;
ordinary rules of statutory construction would prefer the specific
definition over the Dictionary Act's general one. Where a court
needs help is in the awkward case where Congress provides no
particular definition, but the definition in 1 U. S. C. § 1 seems
not to fit. There it is that the qualification "unless the context
indicates otherwise" has a real job to do, in excusing the court
from forcing a square peg into a round hole.
The point at which the indication of particular meaning becomes
insistent enough to excuse the poor fit is of course a matter of
judgment, but one can say that "indicates" certainly imposes less
of a burden than, say, "requires" or "necessitates." One can also
say that this exception from the general rule would be superfluous
if the context "indicate[d] otherwise" only when use of the general
definition would be incongruous enough to invoke the common mandate
of statutory construction to avoid absurd results.3 See,
e.
g.,
Mc-
3 This rule has been applied throughout the history of 1 U. S.
C. § 1 and its predecessors. See,
e. g., Green v.
Bock
Laundry Machine Co., 490 U. S. 504, 510-511
(1989);
Trans Alaska Pipeline Rate Cases, 436 U. S. 631, 643
(1978); Commissioner v.
Brown, 380 U. S. 563, 571
(1965);
Helvering v.
Hammel, 311 U. S. 504, 510-511
(1941);
United States v.
Katz, 271 U. S. 354, 357
(1926);
Caminetti v.
United States, 242 U. S. 470, 490
(1917);
United States v.
Kirby, 7 Wall. 482, 486-487
(1869).
201
Nary v.
Haitian Refugee Center, Inc., 498 U. S. 479, 496 (1991)
("It is presumable that Congress legislates with knowledge of our
basic rules of statutory construction"). In fine, a contrary
"indication" may raise a specter short of inanity, and with
something less than syllogistic force.
III
Four contextual features indicate that "person" in § 1915(a)
refers only to individuals, the first being the provision of §
1915(d) that "[t]he court
may request an attorney to
represent any such person unable to employ counsel." (Emphasis
added.) This permissive language suggests that Congress assumed the
court would in many cases not "request" counsel, see
Mallard
v.
United States District Court, Southern District of Iowa,
490 U. S. 296,
301-302 (1989) (holding that § 1915(d) does not authorize mandatory
appointments of counsel), leaving the "person" proceeding
in
forma pauperis to conduct litigation on his own behalf.4
Underlying this congressional assumption are probably two others:
that the "person" in question enjoys the legal capacity to appear
before a court for the purpose of seeking such benefits as
appointment of counsel without being represented by professional
counsel beforehand, and likewise enjoys the capacity to litigate
without counsel if the court chooses to provide none, in the
exercise of the discretion apparently conferred by the permissive
language. The state of the law, however, leaves it highly unlikely
that Congress would have made either assumption about an artificial
entity like an association, and thus just as unlikely that "person"
in § 1915 was meant to cover more than individuals. It has been the
law
4 This assumption reflects a reality well known within the legal
community. See,
e. g., Turner, When Prisoners Sue: A Study
of Prisoner Section 1983 Suits in the Federal Courts, 92 Harv. L.
Rev. 610, 617 (1979) (study of 42 U. S. C. § 1983 cases filed by
prisoners in five districts found that the "overwhelming majority"
of cases were filed
in forma pauperis, and that "almost all"
the cases were filed
pro se).
202
for the better part of two centuries, for example, that a
corporation may appear in the federal courts only through licensed
counsel.
Osborn v.
President of Bank of United
States, 9 Wheat. 738, 829 (1824); see
Turner v.
American Bar Assn., 407 F. Supp. 451, 476 (ND Tex. 1975)
(citing the "long line of cases" from 1824 to the present holding
that a corporation may only be represented by licensed counsel),
affirmance order
sub nom. Taylor v.
Montgomery,
539 F.2d
715 (CA7 1976), and aff'd
sub nom. Pilla v.
American
Bar Assn., 542 F.2d
56 (CA8 1976). As the courts have recognized, the rationale for
that rule applies equally to all artificial entities. Thus, save in
a few aberrant cases,5 the lower courts have uniformly held that 28
U. S. C. § 1654, providing that "parties may plead and conduct
their own cases personally or by counsel," does not allow
corporations, partnerships, or associations to appear in federal
court otherwise than through a licensed attorney. See,
e. g.,
Eagle Associates v.
Bank of Montreal, 926 F.2d
1305 (CA2 1991) (partnership);
Taylor v.
Knapp,
871 F.2d
803, 806 (CA9) (nonprofit corporation formed by prison
inmates), cert. denied, 493 U. S. 868 (1989);
Jones v.
Niagara Frontier Transportation Authority, 722 F.2d
20, 22 (CA2 1983) (corporation);
Richdel, Inc. v.
Sunspool Corp., 699 F.2d
1366 (CA Fed. 1983)
(per curiam) (corporation);
Southwest Express Co. v.
ICC, 670
F.2d 53, 55
5 Two federal cases cited by respondent are the only two, of
which we are aware, to hold that artificial entities may be
represented by persons who are not licensed attorneys:
United
States v.
Reeves, 431 F.2d
1187 (CA9 1970)
(per curiam) (partner can appear on
behalf of a partnership), and
In re Holliday's Tax Services,
Inc., 417 F. Supp. 182 (EDNY 1976) (sole shareholder can appear
for a closely held corporation), affirmance order
sub nom.
Holliday's Tax Services, Inc. v.
Hauptman, 614 F.2d
1287 (CA2 1979). These cases neither follow federal precedent,
nor have themselves been followed. See,
e. g., Eagle
Associates v.
Bank of Montreal, 926
F.2d 1305, 1309-1310 (CA2 1991) (criticizing and refusing to
follow
Reeves); Jones v.
Niagara Frontier Transportation
Authority, 722 F.2d
20, 22, n. 3 (CA2 1983) (distinguishing and narrowing
Holliday's Tax Services).
203
(CA5 1982)
(per curiam) (corporation);
In re Victor
Publishers, Inc., 545 F.2d
285, 286 (CA1 1976)
(per curiam) (corporation);
Strong Delivery Ministry Assn. v.
Board of Appeals of
Cook County, 543 F.2d
32, 34 (CA7 1976)
(per curiam) (corporation);
United
States v. 9.19
Acres of Land, 416
F.2d 1244, 1245 (CA6 1969)
(per curiam) (corporation);
Simbraw, Inc. v.
United States, 367
F.2d 373, 374 (CA3 1966)
(per curiam) (corporation).
Viewing § 1915(d) against the background of this tradition, its
assumption that litigants proceeding
in forma pauperis may
represent themselves tells us that Congress was thinking in terms
of "persons" who could petition courts themselves and appear
pro
se, that is, of natural persons only.
The second revealing feature of § 1915(d) is its description of
the affidavit required by § 1915(a) as an "allegation of poverty."
Poverty, in its primary sense, is a human condition, to be
"[w]anting in material riches or goods; lacking in the comforts of
life; needy," Webster's New International Dictionary 1919 (2d ed.
1942), and it was in just such distinctly human terms that this
Court had established the standard of eligibility long before
Congress considered extending
in forma pauperis treatment
from "citizens" to "persons." As we first said in 1948, "[w]e think
an affidavit is sufficient which states that one cannot because of
his poverty 'payor give security for the costs ... and still be
able to provide' himself and dependents 'with the necessities of
life.' " Ad
kins v.
E. 1.
DuPont de Nemours
&
Co., 335
U. S. 331, 339. But artificial entities do not fit this
description. Whatever the state of its treasury, an association or
corporation cannot be said to "lac[k] the comforts of life," any
more than one can sensibly ask whether it can provide itself, let
alone its dependents, with life's "necessities." Artificial
entities may be insolvent, but they are not well spoken of as
"poor." So eccentric a description is not lightly to be imputed to
Congress.
204
The third clue is much like the second. Section 1915(a)
authorizes the courts to allow litigation without the prepayment of
fees, costs, or security "by a person who makes affidavit that he
is unable to pay such costs or give security therefor," and
requires that the affidavit also "state the nature of the action,
defense or appeal and affiant's belief that he is entitled to
redress." Because artificial entities cannot take oaths, they
cannot make affidavits. See,
e. g., In re Empire Refining
Co., 1 F. Supp. 548, 549 (SD Cal. 1932) ("It is, of course,
conceded that a corporation cannot make an affidavit in its
corporate name. It is an inanimate thing incapable of voicing an
oath");
Moya Enterprises, Inc. v.
Harry Anderson
Trucking, Inc., 162 Ga. App. 39, 290 S. E. 2d 145
(1982);
Strand Restaurant Co. v.
Parks Engineering Co., 91 A. 2d
711 (D. C. 1952); 9A T. Bjur & C. Slezak, Fletcher Cyclopedia
of Law of Private Corporations § 4629 (Perm. ed. 1992) ("A document
purporting to be the affidavit of a corporation is void, since a
corporation cannot make a sworn statement") (footnote omitted).
Of course, it is true that courts have often coupled this
recognition of a corporation's incapacity to make an affidavit with
a willingness to accept the affidavit of a corporate officer or
agent on its behalf even when the applicable statute makes no
express provision for doing so. See,
e. g., In re Ben Weiss
Co., 271 F.2d
234 (CA7 1959). Any such accommodation would raise at least
three difficulties in this particular statutory context, however.
There would be, first, the frequent problem of establishing an
affiant's authorization. The artificial entities covered by
"person" in the Dictionary Act include not only corporations, for
which lines of authority are well established by state law, but
also amorphous legal creatures like the unincorporated association
before us here. A court may not as readily determine whether a
member of such an association, even a member styled as "president"
or "chairman" or whatnot, has any business purporting to bind it by
affidavit. Next, some weight should probably be given
205
to the requirement of § 1915(a) that the affidavit state the
"affiant's belief that
he is entitled to redress" (emphasis
added). "He," read naturally, refers to the "affiant" as the person
claiming
in forma pauperis entitlement. If the affiant is an
agent making an affidavit on behalf of an artificial entity,
however, it would wrench the rules of grammar to read "he" as
referring to the entity.6 Finally, and most significantly, the
affidavit requirement cannot serve its deterrent function fully
when applied to artificial entities. We said in
Adkins that
"[o]ne who makes this affidavit exposes himself 'to the pains of
perjury in a case of bad faith.' ... This constitutes a sanction
important in protection of the public against a false or fraudulent
invocation of the statute's benefits."
Adkins, supra, at 338
(quoting
Pothier v.
Rodman, 261 U. S. 307, 309
(1923)). The perjury sanction thus serves to protect the public
against misuse of public funds by a litigant with adequate funds of
his own, and against the filing of "frivolous or malicious"
lawsuits funded from the public purse. 28 U. S. C. §§ 1915(a),
1915(d). The force of these sanctions pales when applied to
artificial persons, however. Natural persons can be imprisoned for
perjury, but artificial entities can only be fined. And while a
monetary sanction may mean something to an entity whose agent has
lied about its ability to pay costs or security, it has no
teeth
6 On occasion, when a party is a minor or incompetent, or fails
to cooperate with appointed counsel, or is for some other reason
unable to file a timely affidavit, we will accept an affidavit from
a guardian ad litem or an attorney. By accepting such an affidavit,
we bend the requirement that the affiant state that "he" is
indigent and that "he" believes "he" is entitled to relief. In such
a case, however, it is clear that the party himself is a "person"
within the meaning of § 1915. The only question is whether Congress
intended to deny § 1915 benefits to such a person who for some
reason peculiar to him is disabled from filing an affidavit. It is
quite a different question whether Congress intended to extend §
1915 to entities that, by their nature, could never meet the
statute's requirements.
206
when the lie goes only to belief of entitlement to redress.7 So
far, then, as Congress assumed that the threat of a perjury
conviction could deter an impoverished "person" from filing a
frivolous or malicious lawsuit, it probably assumed that the person
was an individual.
The fourth clue to congressional understanding is the failure of
§ 1915 even to hint at a resolution of the issues raised by
applying an "inability to pay" standard to artificial entities. It
is true, of course, that because artificial entities have no use
for food or the other "necessities of life," Congress could not
have intended the courts to apply the traditional "inability to
pay" criterion to such entities. Yet no alternative standard can be
discerned in the language of § 1915, and we can find no obvious
analogy to the "necessities of life" in the organizational context.
Although the most promising candidate might seem to be
commercial-law "insolvency," commercial law actually knows a number
of different insolvency concepts. See,
e. g., 11 U. S. C. §
101(32) (1988 ed., Supp. III) (defining insolvency as used in the
Federal Bankruptcy Code);
Kreps v.
Commissioner,
351 F.2d
1, 9 (CA2 1965) (discussing a type of "equity" insolvency);
Uniform Commercial Code § 1-201(23), 1 U. L. A. 65 (1989)
(combining three different types of insolvency). In any event,
since it is common knowledge that corporations can often perfectly
well pay court costs and retain paid legal counsel in spite of
being temporarily "insolvent" under any or all of these
definitions, it is far from clear that corporate insolvency is
appropriately analogous to individual indigency.8
7We are not ignoring the fact that the individual who made the
affidavit as the entity's agent could still be prosecuted for
perjury. However, this is clearly a "second-best" solution; the law
does not normally presume that corporate misbehavior can adequately
be deterred solely by threatening to punish individual agents.
8 One plausible motive for Congress to include artificial
entities within the meaning of "person" in § 1915 would be to aid
organizations in bankruptcy proceedings. But the fact that the law
has been settled for almost 20 years that § 1915(a) does not apply
to bankruptcy proceedings, see
207
If § 1915 yields no "inability to pay" standard applicable to
artificial entities, neither does it guide courts in determining
when to "pierce the veil" of the entity, that is, when to look
beyond the entity to its owners or members in determining ability
to pay. Because courts would necessarily have to do just this to
avoid abuse, congressional silence on the subject indicates that
Congress simply was not thinking in terms of granting
in forma
pauperis status to artificial entities.
While the courts that have nonetheless held § 1915 applicable to
artificial entities have devised their own tests for telling when
to "pierce the veil" for a look at individual members or owners,
none of their tests is based on the language of § 1915 or on any
assumption implicit in it. For example, the leading opinion on the
subject, a dissent from a majority opinion that never reached the
issue, appears to frame the issue as whether the individual
shareholders of a corporation "have adopted the corporate form as a
subterfuge to avoid the payment of court costs." S. O.
U. P.,
Inc. v.
FTC, 146 U. S. App. D. C. 66, 68,
449 F.2d
1142, 1144 (1971) (Bazelon, C. J., dissenting) (footnote
omitted). While this test certainly emphasizes why we could hardly
hold that a court should never look beyond the organization to its
individuals, it stems from nothing in § 1915 suggesting that
entities claiming to have slight assets should be treated
in
forma pauperis unless they were organized to cheat the
courts.9
United States v.
Kras, 409 U. S. 434, 440
(1973), would seem to foreclose speculation about such a
motive.
9 Two other decisions allowing organizations to proceed
in
forma pauperis appear to place importance on the "public
interest" character of the organization or the litigation in
question. See
River Valley, Inc. v.
Dubuque County,
63 F. R. D. 123, 125 (ND Iowa 1974) (noting that the corporation at
issue "was formed ... for the purpose of assisting the poor and
underprivileged");
Harlem River Consumers Cooperative, Inc.
v.
Associated Grocers of Harlem, Inc., 71 F. R. D. 93, 96
(SDNY 1976) (finding that "[t]here is a public interest quality to
the stated goal for which the corporation was formed" and that
"there is a public interest aspect to any private suit for treble
damages under the antitrust laws"). The language of
208
The Council makes the argument, apparently accepted by the court
below, that however difficult it might be to formulate
comprehensive rules for determining organizational eligibility to
file
in forma pauperis, we are excused from facing the
difficulty in this case, because the Council's circumstances would
make it eligible under any set of rules. But we cannot construe the
statute very well by sidestepping the implications of deciding one
way or the other, and even if we did assume that some narrow band
of eligibility escaped the contrary contextual indicators, it is
not wholly clear that the Council could conclusively establish
in forma pauperis entitlement. It is not obvious, for
example, why the Council's inability to maintain a separate bank
account should conclusively establish pauper status under § 1915,
any more than a bank account with a one-cent balance would be
conclusive. Account or no account, the Council, like thousands of
other associations, appears to have no source of revenue but the
donations of its members. If members with funds must donate to pay
court fees, why should it make a conclusive legal difference
whether they are able to donate indirectly through an intermediate
bank account, or through one member who transmits donations by
making a payment to the federal court when the Council files a
complaint? 10 Thus, recognizing the possibility of an
organizational
in forma pauperis status even in the
supposedly "extreme" case of the Council would force us to delve
into the difficult issues of policy and administration without any
guidance from § 1915. This con-
§ 1915, however, suggests indifference to the character of the
litigant and to the type of litigation pursued, so long as it is
not frivolous or malicious.
10 There is no evidence in the record suggesting that an inmate
would not be allowed to donate part of the Council's court costs
directly from his personal account to the court, or that the
inmates could not coordinate such donations.
209
text of congressional silence on these issues indicates the
natural character of a § 1915 "person." 11
IV
We do not forget our cases holding that the broad definition of
"person" in 1 U. s. C. § 1 applies in spite of incongruities as
strong, or stronger, than those produced by the four contextual
features we have noted in § 1915. But in each of these cases, some
other aspect of statutory context independently indicated the broad
reading. In
Wilson v.
Omaha Tribe, 442 U. S. 653, 666
(1979), for example, we held that a statutory burden of proof on a
"white person" involved in a property dispute with an Indian
applied to the artificial "persons" listed in the Dictionary Act as
well as to individuals. Because a wholly legal creature has no
color, and belongs to no race, the use of the adjective "white" to
describe a "person" is one of the strongest contextual indicators
imaginable that "person" covers only individuals, and if there had
been no more to the context at issue in
Omaha Tribe, we
would have to concede that our decision in that case is
inconsistent with our conclusion here. But
Omaha Tribe
involved another important, countervailing contextual indication.
The larger context of the whole statute and other laws
llJUSTICE THOMAS asserts that, by drawing an inference from
congressional silence, we "depar[t] from the definition of
'context' set out at the beginning of [our] opinion."
Post,
at 221, n. 9. It is not from some dimensionless void, however, that
we draw our conclusion. Rather, it is from a pointed silence in the
face of obvious problems created by applying to artificial entities
the
text of § 1915, in this case the requirement that the
person seeking
in forma pauperis status be "unable to pay"
costs, fees, and security. As the dissent is willing to affirm
without itself addressing these problems, it is apparently
confident that workable, uncontroversial solutions can be drawn
from the statute. Yet the rule it would affirm (that an
unincorporated association is "unable to pay" whenever its
"chairman" says that it cannot maintain a bank account in its own
name) does not inspire confidence.
210
related to it revealed that the statute's purpose was "to
protect Indians from claims made by non-Indian squatters on their
lands," id., at 665, and we recognized that construing the
disability placed on "white persons" by the statute as extending
only to individuals would virtually frustrate this purpose. "[I]n
terms of the protective purposes of the Acts of which [the property
dispute provision was] a part, it would make little sense to
construe the provision so that individuals, otherwise subject to
its burdens, could escape its reach merely by incorporating and
carrying on business as usual."
Id., at 666.
United States v.
A &
P Trucking Co.,
358 U. S. 121
(1958), is a comparable case, involving two criminal statutes
applying to truckers, one of which expressly applied to
partnerships, and the other of which imposed criminal liability on
"whoever" knowingly violated Interstate Commerce Commission
regulations on transporting dangerous articles. The issue was
whether partnerships could violate the statutes. We noted that the
statutes required proof of knowing violations, and that a
partnership at common law was deemed not to be a separate entity
for purposes of suit.
Id., at 124. Nonetheless, given that
"[t]he purpose of both statutes [was] clear: to ensure compliance
by motor carriers, among others, with safety and other requirements
laid down by the Interstate Commerce Commission in the exercise of
its statutory duty to regulate the operations of interstate
carriers for hire," id., at 123-124, we concluded that it would
make no sense if motor carriers could avoid criminal liability for
violating the trucking regulations "merely because of the form
under which they were organized to do business," id., at 124
(footnote omitted).
Thus, in both
Omaha Tribe and
A &
P
Trucking Co., we found that the statutes in question manifested
a purpose that would be substantially frustrated if we did not
construe the statute to reach artificial entities. Section 1915,
however, manifests no such single purpose subject to substantial
frus-
211
tration by limiting the statutory reach to natural persons.
Denying artificial entities the benefits of § 1915 will not in any
sense render nugatory the benefits that § 1915 still provides to
individuals. Thus,
Omaha Tribe and
A &
P
Trucking Co. confirm our focus on context, but turned on
contextual indicators not present here.12
V
The Council argues that denying it
in forma pauperis
status would place an unconstitutional burden on its members' First
Amendment rights to associate, to avoid which we should construe §
1915 broadly. See,
e. g., NLRB v.
Catholic Bishop of
Chicago, 440 U.
S. 490, 500 (1979) ("[A]n Act of Congress ought not be
construed to violate the Constitution if any other possible
construction remains available"). We find no merit in this
argument. It is true that to file a suit
in forma pauperis,
not in the Council's name, as such, but under the title
"X, Y,
and Z, known as the Council v.
Rowland," X, Y, and Z
would each need to file an affidavit stating that he met the
indigency requirements of § 1915. Nothing, however, in § 1915
suggests that the requirements would be less burdensome if the suit
were titled
"The Council v.
Rowland"; even if we held
that an association could proceed
in forma pauperis, our
prior discussion shows that a court could hardly ignore the assets
of the association's members in making the indigency determination.
Because the extension of § 1915 to artificial entities need not
lighten its practi-
12JUSTICE THOMAS suggests that our reference to statutory
purpose here is inconsistent with our interpretation of "context"
in 1 U. S. C. § 1.
Post, at 213-214, n. 1. A focus on
statutory text, however, does not preclude reasoning from statutory
purpose. To the contrary, since "[s]tatutes ... are not inert
exercises in literary composition[, but] instruments of
government,"
United States v.
Shirey, 359 U. S. 255, 260 (1959)
(per Frankfurter, J.), a statute's meaning is inextricably
intertwined with its purpose, and we will look to statutory text to
determine purpose because "the purpose of an enactment is embedded
in its words even though it is not always pedantically expressed in
words," id., at 261.
212
THOMAS, J., dissenting
cal requirements, the limitation of § 1915 to individuals puts
no unconstitutional burden on the right to associate in the manner
suggested.
VI
The judgment of the Court of Appeals is reversed, and the case
is remanded with instructions that the case be remanded to the
District Court, where the motion for leave to file
in forma
pauperis must be denied.
So ordered.
JUSTICE KENNEDY, dissenting.
In determining whether the context of a statute indicates an
intent to confine a word to a meaning more narrow than the one
contained in the Dictionary Act, 1 U. S. C. § 1, it seems to me
permissible to ask whether the broad Dictionary Act definition is
compatible with a workable construction of the statute. To the
extent the Court attempts to uncover significant practical barriers
to including artificial entities within 28 U. S. C. § 1915, its
analysis is quite appropriate and ought not to be condemned as
policymaking. The problem, in my view, is that the Court does not
succeed in this attempt. As the dissenting opinion by JUSTICE
THOMAS well illustrates, the broad definition of "person," the one
the Dictionary Act tells us to prefer, is not inconsistent with a
commonsense, workable implementation of § 1915.
With this observation, I join JUSTICE THOMAS' dissenting
opinion.
JUSTICE THOMAS, with whom JUSTICE BLACKMUN, JusTICE STEVENS, and
JUSTICE KENNEDY join, dissenting.
The parties agree that the interpretive point of departure in
deciding whether an association is a "person" for purposes of the
in forma pauperis statute, 28 U. S. C. § 1915, is the first
section of the United States Code. The question presented in this
case may thus be formulated as follows: Must the presumption
codified in 1 U. S. C. § i-namely, that "[i]n
213
determining the meaning of any Act of Congress," the word
"person" should be construed to include an association-be given
effect in determining the meaning of the
in forma pauperis
statute, or has the presumption been overcome because the context
"indicates otherwise"? The answer to that question ultimately turns
on the meaning of the phrase "unless the context indicates
otherwise." In my view, the Court's holding rests on an
impermissibly broad reading of that language. I see no basis for
concluding that an association is not entitled to
in forma
pauperis status.
The Court states that the word "context" in 1 U. s. C. § 1
"means the text of the Act of Congress surrounding the word at
issue, or the texts of other related congressional Acts."
Ante, at 199. The Court then goes on to say that the word
"indicates" has a broader scope than the word "context"; that it
"imposes less of a burden than, say, 'requires' or
'necessitates'''; and that "a contrary 'indication' may raise a
specter short of inanity, and with something less than syllogistic
force."
Ante, at 200, 201. I share the Court's understanding
of the word "context." 1 I do not share the Court's under-
1 I should note, however, that the majority departs from that
understanding in its discussion of
Wilson v.
Omaha
Tribe, 442 U. S.
653 (1979), which presented the question whether a corporation
is a "person" for purposes of a statute apportioning the burden of
proof in property disputes between an Indian and a "white person."
Instead of relying on the text surrounding the word "person," as it
purports to do in this case, the majority defends
Omaha
Tribe on the ground that a narrow construction of "person"
would frustrate the "purpose" of the statute at issue in that case.
Ante, at 210. This is perhaps understandable, since it would
be exceedingly difficult to defend
Omaha Tribe on textual
grounds. But if the word "context" in 1 U. S. C. § 1 refers only to
the text that surrounds a word, either
Omaha Tribe was
wrongly decided or this case has been wrongly decided. They cannot
both be correct. A strong argument can be made that the Court
misinterpreted 1 U. S. C. § 1 in
Omaha Tribe. But if it did
not-if it was correct in holding that the statutory term "white
person" includes a corporation (because the "context" does not
"indicat[e] otherwise")-the conclusion that an association is a
"person" for
in forma pauperis purposes is inescapable.
There is no language surrounding the
214
THOMAS, J., dissenting
standing of the word "indicates," however, because its gloss on
that word apparently permits (and perhaps even requires) courts to
look beyond the words of a statute, and to consider the policy
judgments on which those words mayor may not be based. (It
certainly enables the Court to do so in this case.) I agree that
the exception to the rule of construction codified in 1 U. S. C. §
1 is not susceptible of precise definition, and that determining
whether "the context indicates otherwise" in any given case is
necessarily "a matter of judgment."
Ante, at 200. Whatever
"unless the context indicates otherwise" means, however, it cannot
mean "unless there are sound policy reasons for concluding
otherwise."
I
The
in forma pauperis statute authorizes courts to allow
"[1] 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, by a person who
[2] makes affidavit that he is [3] unable to pay such costs or give
security therefor." 28 U. S. C. § 1915(a). Section 1915(a) thus
contemplates that the "person" who is entitled to the benefits of
the provision will have three characteristics: He will have the
capacity to sue or be sued, to make an affidavit, and to be unable
to pay court costs. An association clearly has the capacity to do
each of these things, and that, in my view, should be the end of
the matter.
An artificial entity has the capacity to sue or be sued in
federal court as long as it has that capacity under state law (and,
in some circumstances, even when it does not). See Fed. Rule Civ.
Proc. 17(b).2 An artificial entity can make
word "person" in § 1915 that is even remotely comparable to the
word "white," which, as the majority observes, is "one of the
strongest contextual indicators imaginable," since a corporation
"has no color, and belongs to no race."
Ante, at 209.
2 Under Rule 17(b), the capacity of a corporation to sue or be
sued is determined by the law under which it was organized, and the
capacity of an unincorporated association is determined by the law
of the State in
215
an affidavit through an agent. See,
e. g., Davidson v.
Jones, Sullivan &
Jones, 196 S. W. 571, 572 (Tex.
Civ. App. 1917) (partnership);
Sime v.
Hunter, 50
Cal. App. 629, 634, 195 P. 935, 937 (1920) (partnership);
In re
McGill's Estate, 52 Nev. 35, 44, 280 P. 321, 323 (1929)
(corporation);
Payne v.
Civil Service Employees Assn.,
Inc., 27 Misc. 2d 1006, 1006-1007, 218 N. Y. S. 2d 871, 872
(Sup.) (association), aff'd, 15 App. Div. 2d 265, 222 N. Y. S. 2d
725 (1961);
Kepl v.
Manzanita Corp., 246 Ore. 170,
178,424 P. 2d 674, 678 (1967) (corporation);
Federal Land Bank
of St. Paul v.
Anderson, 401 N. W. 2d 709, 712 (N. D.
1987) (corporation).3 And an artificial entity, like any other
litigant, can lack the wherewithal to pay costs.
Permitting artificial entities to proceed
in forma
pauperis may be unwise, and it may be an inefficient use of the
Government's limited resources, but I see nothing in the text
of
which the district court is located. An unincorporated
association that lacks the capacity to sue or be sued under the law
of the forum State may still litigate in federal court when the
action is brought for the enforcement of a federal right.
3 Before acknowledging that an agent can make an affidavit on
behalf of an artificial entity, the majority pauses to say that
such an entity cannot make an affidavit itself.
Ante, at
204. I suppose this distinction has some metaphysical significance,
but I fail to see how it is otherwise relevant, since any action an
artificial entity takes must be done through an agent. (It is
noteworthy that two of the cases cited by the majority for the
proposition that an artificial entity cannot make an affidavit
recognize that an agent can make an affidavit on an entity's
behalf. See
In re Empire Refining Co., 1 F. Supp. 548, 549
(SD Cal. 1932) ("On its behalf some representative must speak");
Strand Restaurant Co. v.
Parks Engineering Co., 91 A.
2d 711, 712 (D. C. 1952).) In any event, there is authority for the
view that at least under some circumstances, there is no
distinction at all-theoretical or otherwise-between an affidavit
made on behalf of an artificial entity and an affidavit of the
entity itself. See
Utah Farm Production Credit Assn. v.
Watts, 737 P. 2d 154, 157 (Utah 1987) ("Where an affidavit
is made by an officer, it is generally considered to be the
affidavit of the corporation itself");
American Soda Fountain
Co. v.
Stolzenbach, 75 N. J. L. 721, 734, 68 A. 1078,
1083 (1908) ("[W]here it becomes necessary for a corporation ... to
make an affidavit, the affidavit may be made in its behalf by an
officer thereof ... ; ... such affidavit is, in legal
contemplation, the affidavit of the corporation, and not of an
agent").
216
THOMAS, J., dissenting
the
in forma pauperis statute indicating that Congress
has chosen to exclude such entities from the benefits of that law.
While the "context indicates" that an artificial entity is not a
"person" for purposes of a statute providing benefits to
individuals with disabilities,4 the same cannot be said of 28 U. s.
C. § 1915, which provides benefits to impecunious litigants-a class
encompassing both natural and artificial "persons." 5
4 See,
e. g., 42 U. S. C. § 6001(5) (1988 ed., Supp. II)
("The term 'developmental disability' means a severe, chronic
disability of a person"); 2 U. S. C. § 135b(a) ("[P]reference shall
at all times be given to the needs of the blind and of the other
physically handicapped persons").
5 The context also "indicates otherwise" in statutes dealing
with marriage, see,
e. g., 38 U. S. C. § 101(31) ("The term
'spouse' means a person of the opposite sex who is a wife or
husband"); § 103(a) ("any claim filed by a person as the widow or
widower of a veteran"), the military, see,
e. g.,
18
U. S. C. § 244 ("any person wearing the uniform of any of the armed
forces of the United States"); 38 U. S. C. § 101(2) ("The term
'veteran' means a person who served in the active military, naval,
or air service, and who was discharged or released therefrom under
conditions other than dishonorable"), drug addiction, see,
e. g., 42 U. S. C. § 201(k) ("The term 'addict' means any
person who habitually uses any habit-forming narcotic drugs"),
drunk driving, see,
e. g., 18 U. S. C. § 3118(a) (1988 ed.,
Supp. II) ("such person's driving while under the influence of a
drug or alcohol"), kidnaping, see,
e. g., § 1201(a)
("[w]hoever unlawfully seizes, confines, ... kidnaps, abducts, or
carries away and holds for ransom ... any person"), sexual assault,
see,
e. g., § 2241(a) ("[w]hoever, in the special maritime
and territorial jurisdiction of the United States or in a Federal
prison, knowingly causes another person to engage in a sexual
act"), language, see,
e. g., 28 U. S. C. § 1827(b)(1)
("persons who speak only or primarily a language other than the
English language"), jury duty, see,
e. g., § 1865(a) ("The
chief judge ... shall determine ... whether a person is unqualified
for, or exempt, or to be excused from jury service"), "missing
persons," see,
e. g., § 534(a)(3) ("The Attorney General
shall ... acquire, collect, classify, and preserve any information
which would assist in the location of any missing person ... and
provide confirmation as to any entry for such a person to the
parent, legal guardian, or next of kin of that person"), and
"homeless persons," see,
e. g., 42 U. S. C. § 12705(b)(2)(C)
(1988 ed., Supp. II) ("helping homeless persons make the transition
to permanent housing and independent living").
217
II
The Court's holding rests on the view that § 1915 has four
"contextual features,"
ante, at 201, indicating that only a
natural person is entitled to
in forma pauperis status.
These "features" include a few select words in § 1915 and a number
of practical problems that may arise when artificial entities seek
to proceed
in forma pauperis. I do not believe that § 1915
contains any language indicating that an association is not a
"person" for purposes of that provision, and I do not think it is
appropriate to rely upon what are at bottom policy considerations
in deciding whether "the context indicates otherwise." In my view,
none of the "contextual features" discussed by the Court, either
alone or in combination with the others, can overcome the statutory
presumption that an association is a "person."
A
The first "contextual feature" identified by the Court is the
portion of the
in forma pauperis statute providing that
"[t]he court may request an attorney to represent any such person
unable to employ counsel." 28 U. S. C. § 1915(d). Because a
corporation, partnership, or association may appear in federal
court only through licensed counsel, and because the permissive
language of § 1915(d) suggests that Congress assumed that there
would be many cases in which the court would not appoint counsel,
Congress, the Court says, "was thinking in terms of 'persons' who
could petition courts themselves and appear
pro se, that is,
of natural persons only."
Ante, at 203.
This does not follow at all. Congress' use of the word "may" is
entirely consistent with an intent to include artificial entities
among those "persons" entitled to the benefits of the
in forma
pauperis statute, and it does not necessarily rest on an
"assumption that litigants proceeding
in forma pauperis may
represent themselves."
Ibid. Section 1915 gives courts
discretion both with respect to granting
in
218
THOMAS, J., dissenting
forma pauperis status and with respect to appointing
counsel. When a natural person seeks the benefits of § 1915, a
court will often allow that person to proceed
in forma
pauperis but refuse to appoint counsel. Under such
circumstances, the person may either obtain counsel elsewhere or
proceed
pro se. When an
artificial person seeks the
benefits of § 1915, a court might likewise permit that "person" to
proceed
in forma pauperis but refuse to appoint counsel.
Under these circumstances, the artificial person has fewer options
than a natural person: It can either obtain counsel elsewhere or
lose the opportunity to appear in federal court. That an artificial
entity without funds may in some circumstances be unable to have
its case heard in federal court, however, does not prove that
Congress intended to exclude such an entity from the benefits of
the
in forma pauperis statute. An artificial entity's
inability to proceed
pro se bears upon the
extent to
which such an entity may benefit from § 1915, but it has no bearing
upon
whether it may benefit. And that, after all, is the
question presented in this case.
The second "contextual feature" on which the Court focuses is
the use of the word "poverty" in § 1915(d). "Poverty," in the
Court's view, is a "human condition"; artificial entities "may be
insolvent, but they are not well spoken of as 'poor.'"
Ante,
at 203.
I am not so sure.6 "Poverty" may well be a human condition in
its "primary sense," ibid., but I doubt that using the word in
connection with an artificial entity departs in any significant way
from settled principles of English usage.
6 Nor, apparently, are petitioners. At oral argument counsel for
petitioners was asked whether the word "poverty" in § 1915(d)
"helps" him, since one does not "usually think of a corporation as
making an affidavit of poverty." Tr. of Oral Arg. 11. In response,
petitioners' counsel said that he "really d[id] believe that a
bankrupt corporation could make an affidavit of poverty," id., at
11-12, and conceded that he did not "pin much" on the word
"poverty," id., at 12.
219
One certainly need not search long or far to find examples of
the use of "poor" in connection with nonhuman entities-and, indeed,
in connection with the very entities listed in 1 U. S. C. § 1. No
less a figure than Justice Holmes had occasion to write that the
issuance of stock dividends renders a corporation "no poorer" than
it was before their distribution,
Towne v.
Eisner,
245 U. S. 418,
426 (1918), and other judges have used the word "poor" (or one of
its derivatives) in a similar fashion, see,
e. g., Ordinetz
v.
Springfield Family Center, Inc., 142 Vt. 466, 468, 457 A.
2d 282, 283 (1983) ("[A] nonprofit corporation may be ... wealthy
or impoverished");
In re Whitley v.
Klauber, 51 N. Y.
2d 555, 579, 416 N. E. 2d 569, 581 (1980) (Fuchsberg, J.,
dissenting) ("[T]he corporation is no richer or poorer for the
transaction"). More important for our purposes,
Congress
itself has used the word "poor" to describe entities other than
natural persons, referring in at least two provisions of the United
States Code to the world's "poorest countries"-a term that is used
as a synonym for the least developed of the so-called "developing"
countries. See 22 U. S. C. §§ 262p-4f(a)(3), 2151d(d)(4). If
Congress has seen fit to describe a country as "poor," I see no
reason for concluding that the notion of a "poor" corporation,
partnership, or association ought not to be "imputed to Congress."
Ante, at 203.7
7The majority says that we established the "standard of
eligibility" for
in forma pauperis status in "distinctly
human terms,"
ante, at 203, in
Adkins v.
E. I.
DuPont de Nemours &
Co., 335 U. S. 331 (1948), and
then quotes the following language from our opinion in that case:
"We think an affidavit is sufficient which states that one cannot
because of his poverty 'payor give security for the costs ... and
still be able to provide' himself and dependents 'with the
necessities of life,'" id., at 339. But the "standard of
eligibility" was cast in "distinctly human terms" in
Adkins
only because the parties seeking
in forma pauperis status in
that case were natural persons, and the language quoted by the
Court was taken from their affidavits. See id., at 334. Thus,
contrary to the majority's suggestion,
Adkins established no
a priori standard of "poverty," and is in no way
inconsistent with the view that an artificial entity may be
"poor."
220
THOMAS, J., dissenting
B
The third "contextual feature" is § 1915's affidavit
requirement, which, in the Court's view, raises a number of
"difficulties."
Ante, at 204. One such "difficulty" is the
"problem of establishing an affiant's authorization"; a court may
have trouble determining whether a member of an unincorporated
association "has any business purporting to bind it by affidavit."
Ibid. Another "difficulty" is that the affidavit
requirement's deterrent function cannot be served "fully" when the
litigant is an artificial entity.
Ante, at 205. This is
because "[n]atural persons can be imprisoned for perjury, but
artificial entities can only be fined,"
ibid., and because
the possibility of prosecuting the entity's perjurious agent is
only a "'second-best' solution,"
ante, at 206, n. 7.
But these are classic policy considerations-the concerns of a
legislature, not a court. Unlike the majority, I am perfectly
willing to assume that in adding the word "person" to § 1915
Congress took into account the fact that it might be difficult to
determine whether an association's member has the authority to
speak on its behalf, and that the possibility of a perjury
prosecution might not deter artificial entities sufficiently. In
deciding that "the context indicates otherwise," the Court has
simply second-guessed Congress' policy judgments.8
8The majority also gives "some weight,"
ante, at 204, to
§ 1915(a)'s requirement that the affidavit state the "affiant's
belief that he is entitled to redress." If the "affiant" is "an
agent making an affidavit on behalf of an artificial entity,"
according to the majority, "it would wrench the rules of grammar to
read 'he' as referring to the entity."
Ante, at 205. This
may be so, but only if the majority's premise is correct. Since an
"affiant" is simply a person who makes an affidavit, see Black's
Law Dictionary 79 (4th ed. 1951), and an artificial entity can make
an affidavit through an agent, it is hardly unreasonable to
understand the word "affiant" in § 1915(a) as a reference not to
the agent but to the entity on whose behalf the affidavit is made.
Such an understanding is all the more reasonable when the agent is
an officer of the entity, since courts have held that under
221
The fourth "contextual feature" identified by the Court is the
difficulty of the "issues raised by applying an 'inability to pay'
standard to artificial entities,"
ante, at 206, and the
difficulty of determining "when to look beyond the entity to its
owners or members in determining ability to pay,"
ante, at
207. These, too, are policy matters that Congress should be
presumed to have considered when it inserted the word "person" into
§ 1915. As with the difficulties associated with the affidavit
requirement, any difficulties associated with the "inability to
pay" test are relevant to the issue of why Congress might have
chosen to include artificial entities among those "persons"
entitled to
in forma pauperis status, but they are not
relevant to the issue of whether Congress has in fact made this
choice.9
Petitioners essentially concede that this argument is ultimately
one of policy when they say that the "test for indigency" will
create "procedural problems" and will have "practical effects ...
on the administration of justice." Brief for Petitioners 17. Today
the Court accepts this argument, but a unanimous Court rejected a
similar argument only four Terms ago in a case involving another
provision of the
in
such circumstances the affidavit is considered to be the
affidavit of the entity itself. See n. 3,
supra.
9 In discussing the difficulty of determining whether an
artificial entity is unable to pay costs, the majority says that
the "context of congressional silence on [this] issu[e] indicates
the natural character of a § 1915 'person.'''
Ante, at
208-209. See also
ante, at 207. In relying upon
"congressional silence" as a "contextual indicator," however, the
majority once again departs from the definition of "context" set
out at the beginning of its opinion: Rather than relying upon the
words surrounding "person," the majority accords significance to
the
absence of words surrounding "person." Cf. n. 1,
supra. But even if reliance on statutory silence is
consistent with the majority's definition of "context," it is not
apparent to me why the absence of a statutory "ability to pay"
standard for artificial entities demonstrates that the
in forma
pauperis statute covers natural but not artificial persons,
since § 1915 contains no such standard for any kind of
"person."
222
THOMAS, J., dissenting
forma pauperis statute.
Neitzke v.
Williams, 490
U. S. 319 (1989), presented the question whether a complaint
that fails to state a claim under Rule 12(b)(6) of the Federal
Rules of Civil Procedure is necessarily "frivolous" for purposes of
28 U. S. C. § 1915(d). Rejecting the argument that an affirmative
answer to that question would help to lighten the burden that the
in forma pauperis statute imposes on "efficient judicial
administration," we stated that "our role in appraising
petitioners' reading of § 1915(d) is not to make policy, but to
interpret a statute," and that the proposed reading might be
appealing "as a broadbrush means of pruning meritless complaints
from the federal docket," but "as a matter of statutory
construction it is untenable." 490 U. S., at 326.
The Court suggests that a reading of § 1915 under which an
artificial entity is entitled to
in forma pauperis status
would force it to confront "difficult issues of policy and
administration."
Ante, at 208. Far from
avoiding
policy determinations, however, the Court effectively
engages in policymaking by refusing to credit the
legislative judgments that are implicit in the statutory language.
Any reading of the phrase "unless the context indicates otherwise"
that permits courts to override congressional policy judgments is
in my view too broad. Congress has spoken, and we should give
effect to its words.
III
Congress has created a rule of statutory construction (an
association is a "person") and an exception to that rule (an
association is not a "person" if the "context indicates
otherwise"), but the Court has permitted the exception to devour
the rule. In deciding that an association is not a "person" for
purposes of 28 U. S. C. § 1915(a), the Court effectively reads 1 U.
S. C. § 1 as if the presumption ran the other wayas if the statute
said that "in determining the meaning of any Act of Congress,
unless the context indicates otherwise, the word 'person' does
not include corporations, partnerships, and associations."
While it might make sense as a
223
matter of policy to exclude associations and other artificial
entities from the benefits of the
in forma pauperis statute,
I do not believe that Congress has done so.
I respectfully dissent.
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