182 F.3d 25 (D.C. Cir. 1999)
Alvin Darrell Smith, Appellantv.District of Columbia, et al., Appellees
No. 97-7232
United States Court of Appeals FOR THE DISTRICT OF COLUMBIA CIRCUIT
Argued May 5, 1999Decided June 25, 1999

Appeal from the United States District Court for the District of Columbia  (No. 97cv02029)
Caroline M. Brown, appointed by the court, argued the  cause and filed the brief as amicus curiae on behalf of  appellant.
Alvin D. Smith, appearing pro se, was on the briefs for  appellant.
Mary L. Wilson, Assistant Corporation Counsel, argued  the cause for appellees.  With her on the brief were John M.  Ferren, Corporation Counsel, and Charles L. Reischel, Deputy Corporation Counsel.
Before:  Ginsburg, Sentelle and Randolph, Circuit Judges.
Opinion for the Court filed by Circuit Judge Sentelle.
Sentelle, Circuit Judge:


1
Pursuant to the "three-strikes"  provision of the Prison Litigation Reform Act ("PLRA"), 28  U.S.C. § 1915(g), the district court denied appellant Alvin  Darrell Smith's application to proceed in forma pauperis in  his civil suit against prison officials, and dismissed his complaint without prejudice to his bringing a paid complaint.   Smith appeals the district court's order, and seeks to proceed  in forma pauperis on appeal.  We conclude that he is not  entitled to in forma pauperis status in this court.  We also  conclude that our denial of in forma pauperis status does not  make Smith liable for fees, although he must of course pay  the required fees in full if he wishes to proceed with his  appeal.

I. Background

2
Appellant Smith is a prisoner of the D.C. Department of  Corrections.  On August 14, 1997, Smith mailed a complaint  to the U.S. District Court, bringing suit against the District  of Columbia, the D.C. Department of Corrections, and several  correctional officers.  Smith alleged that his civil rights were  violated under 42 U.S.C. § 1983 when he was not allowed to  bring religious and educational materials when transferred  from Lorton Correctional Complex to a facility in Ohio.   Smith's complaint was accompanied by an application to  proceed in forma pauperis, and a prison trust account report  for the one-and-a-half-month period he had been at the new  facility.


3
On September 5, 1997, a district court judge issued an  order allowing the provisional filing of the complaint, but  requiring Smith to provide the court with a prison trust  account report from his previous institution. However, on October 30, 1997, a second judge issued an order denying the  application to proceed in forma pauperis on the ground that  Smith on at least three previous occasions had brought civil  actions that were dismissed as frivolous, malicious, or for  failure to state a claim, so that he could not proceed in forma  pauperis under 28 U.S.C. § 1915(g).  The district court cited  two cases in which Smith was plaintiff that were dismissed for  failure to state a claim on August 29, 1997 (CA No. 97-1987  and CA No. 97-1988) and one which was dismissed for failure  to state a claim on October 16, 1997 (CA No. 97-2485).  After  denying in forma pauperis status, the order dismissed the  complaint without prejudice to Smith's right to file a paid  complaint.


4
Smith filed a notice of appeal encompassing the current  action as well as the three previously dismissed cases to  which the district court's order referred.  The appeals from  the three earlier decisions were dismissed for lack of prosecution.  Nos. 97-7233, 97-7231, 97-7230 (D.C. Cir. July 23,  1998).  On August 17, 1998, Smith's application to proceed in  forma pauperis in this case was referred to this panel, and an  amicus was appointed on Smith's behalf.

II. The Three-Strikes Determination

5
Because Smith has not paid the required fees in this court,  our first question is whether he is entitled to proceed in  forma pauperis here.  The District claims that 28 U.S.C.  § 1915(g) prevents Smith from proceeding in forma pauperis.  Under that section, prisoners with three or more so- called "strikes" may proceed in forma pauperis only in very  limited circumstances:


6
In no event shall a prisoner bring a civil action or appeal a judgment in a civil action or proceeding under this section if the prisoner has, on 3 or more prior occasions, while incarcerated or detained in any facility, brought an  action or appeal in a court of the United States that was  dismissed on the grounds that it is frivolous, malicious, or  fails to state a claim upon which relief may be granted, unless the prisoner is under imminent danger of serious       physical injury.


7
28 U.S.C. § 1915(g).  In the government's view, the three  dismissals cited by the district court all count as "strikes"  under this provision, since they were all for failure to state a  claim.1  However, amicus argues that none of these three  dismissals should count as strikes.  In amicus's view, this  result follows from two propositions, both of which amicus  urges us to adopt.  First, amicus asserts that we should  recognize that the three-strikes determination must be based  on the situation at the time an appeal or complaint is filed,  even if, as here, the decision regarding in forma pauperis  status is actually made some time later.  Second, amicus  urges that dismissals should not count as strikes until appeal  has been exhausted or waived.  Amicus claims that if these  two propositions are accepted, the three cited dismissals do  not count as strikes.


8
However, we conclude that even assuming that we accepted  amicus's two propositions as a general matter, each of the  three cited dismissals here would nonetheless count as  strikes, because the time for appeal of those dismissals had  expired when this appeal was filed.  The first two of the  dismissals in question occurred on August 29, 1997, while the  third occurred on October 16, 1997.  Under F.R.A.P. 4(a)(1),  the notice of appeal in a civil action must be filed within 30  days of the challenged order or judgment.  A notice of appeal  by an inmate is treated as timely if it is deposited in the  institution's internal mail system on or before the last day for  filing.  F.R.A.P. 4(c)(1).  The 30-day time limit is " 'mandato-ry and jurisdictional.' "  Browder v. Director, Dep't of Corrections of Illinois, 434 U.S. 257, 264 (1978) (quoting United  States v. Robinson, 361 U.S. 220, 229 (1960)).  Here, the  notice of appeal of the three dismissals and the present case  was dated December 6, 1997, and was received by the district  court on December 11, 1997.  Amicus argues that we cannot  determine whether the appeals from the three earlier dismissals were timely because it is not apparent from the  record on what date Smith mailed the notice of appeal.  But  even if it is unclear precisely when the notice of appeal was  placed in the mail, it is clear that it could not have been  before December 6, the date Smith completed the notice.   Amicus also points out that the record "does not indicate  whether" any motions were filed which would have tolled the  time for filing a notice of appeal under F.R.A.P. 4(a)(4).   Amicus Br. at 12 n.3.  But given that the docket contains no  mention of any such motions, it is not clear what other  "indication" amicus would want.  Thus December 6 is the  earliest possible effective date of filing, which places Smith's  attempted appeals of the three earlier dismissals well outside  the 30-day period provided by F.R.A.P. 4(a).2


9
Despite the fact that Smith did not appeal the three  dismissals at issue within the time period provided by  F.R.A.P. 4(a), amicus urges that the dismissals should not  count as strikes given that Smith filed notices of appeal of  those dismissals at the same time he filed his notice of appeal  in this case.  In amicus's view, those dismissals should not  count as strikes because their appeal was "pending" when the  present appeal was filed.  In other words, amicus would have  us allow a prisoner to convert what would otherwise have  been a strike into a non-strike by filing an untimely notice of  appeal.  Clearly, to accept this argument would provide an  avenue for prisoners to effectively circumvent the three- strikes provision.  A prisoner barred from proceeding in  forma pauperis by the existence of previous strikes could  avoid the intended consequences of § 1915(g) by filing untimely appeals of the dismissals constituting strikes.  Amicus  offers no statutory justification for this view, and we decline  to adopt it.  Even if district court dismissals do not count as  strikes while appeal is available, once the time for appeal has  expired, that is the end of the matter, and untimely attempts  to appeal do not change the situation.  At the time this appeal  was filed, Smith had at least three previous dismissals in the  district court for failure to state a claim, and the time for  appeal of those dismissals had expired.  It is of no import  that the appeals of the three dismissals at issue were actually  dismissed for nonprosecution rather than untimeliness. The  district court dismissals should not fail to count as strikes  simply because the untimely appeals of those dismissals suffered from other flaws as well.  Thus even if amicus is correct  that we must assess the situation at the time of filing, and  that strikes do not count as long as appeal is available, these  propositions are of no help to Smith.

III. Liability for Fees

10
Having concluded that Smith is not entitled to proceed in  forma pauperis, we face the question of whether he now becomes liable for the full filing and docketing fees, or  whether he need only pay the fees if he seeks to proceed with  his appeal.  Under the PLRA, a prisoner allowed to proceed  in forma pauperis no longer escapes liability for fees.  He is  simply permitted to pay the fees in installments rather than  in a single payment.  28 U.S.C. § 1915(b).  Smith, however,  is not being allowed to proceed in forma pauperis.  Thus, he  must pay the full fees in advance if he wishes to pursue his  appeal.  But must he also pay the full fees even if he does not  pursue his appeal?


11
Section 1915(b)(1) provides that "if a prisoner brings a civil  action or files an appeal in forma pauperis, the prisoner shall  be required to pay the full amount of a filing fee."  28 U.S.C.  § 1915(a)(3).  Thus the question is whether when a prisoner  files a notice of appeal and application to proceed in forma  pauperis, and his application is denied, we will treat him as  having "file[d] an appeal in forma pauperis" so that the fee  requirement attaches.  Id. Although some courts have required prisoners to pay the full filing fee whenever their in  forma pauperis application is denied, see Newlin v. Helman,  123 F.3d 429, 434 (7th Cir. 1997);  Henderson v. Norris, 129  F.3d 481, 483 (8th Cir. 1997);  Leonard v. Lacy, 88 F.3d 181,  184 (2d Cir. 1996), it has not been our practice to do so.  For  example, in Wooten v. District of Columbia Metropolitan  Police Department, 129 F.3d 206 (D.C. Cir. 1997), we considered a prisoner's attempt to proceed in forma pauperis on  appeal after the District Court had certified that the appeal  was not taken in good faith.  We agreed that the appeal was  not in good faith and therefore that Wooten could not proceed  in forma pauperis under 28 U.S.C. § 1915(a)(3).  But we did  not then require him to pay the fees, instead noting that he  could choose to pay the $105 fees and pursue his appeal, or  that if he did not pay within 14 days, his appeal would be  dismissed.  Indeed, given what we perceived as the appeal's  apparent lack of merit, we suggested that it would be "foolish" for Wooten to pay the fees and proceed.  Wooten, 129  F.3d at 208.  See also In re Smith, 114 F.3d 1247 (D.C. Cir.  1997).  Similarly, several other circuits appear to follow the  practice of denying in forma pauperis status without requiring fee payment.  See, e.g., Rodriguez v. Cook, 169 F.3d 1176,  1182 (9th Cir. 1999);  Banos v. O'Guin, 144 F.3d 883, 885 (5th  Cir. 1998);  Keener v. Pennsylvania Bd. of Probation &  Parole, 128 F.3d 143, 145 (3d Cir. 1997).


12
In accordance with our past practice, we will not require  fee payment here, unless Smith wishes to proceed with his  appeal.  Section 1915(b)(1) imposes fee liability when "a  prisoner brings a civil action or files an appeal in forma  pauperis."  28 U.S.C. § 1915(b)(1).  This wording differs  significantly from that of subsection 1915(a)(2), which requires a prisoner to file an affidavit of poverty and certified  copy of his prison trust fund account whenever "seeking to  bring a civil action or appeal a judgment in a civil action" in  forma pauperis.  Id. § 1915(a)(2) (emphasis added).  While  Smith is clearly seeking to proceed in forma pauperis, we will  not treat him as having "filed an appeal in forma pauperis"  when he has not been granted in forma pauperis status and  his appeal has not been considered.3  For the present purpose, we will deem a prisoner to have "file[d] an appeal in  forma pauperis" as soon as he has both filed a notice of  appeal and been granted in forma pauperis status, but not  before.


13
Although requiring prisoners denied in forma pauperis  status to pay the full fees even though their appeal is not  considered would arguably provide an additional deterrent to  prisoner filings, our disposition here can hardly be viewed as  encouraging prisoner appeals.  Unless he pays the required  fees, Smith's appeal will be dismissed.  In addition, our  conclusion that Smith has three strikes will allow summary  treatment of any future applications for in forma pauperis  status.  In our view, requiring prisoners to pay the full fees  in such situations would create either administrative difficulty  or an incentive for the prisoners to continue to pursue their  appeals.  If a prisoner did not have sufficient funds to pay the  fees, requiring immediate payment in full would result pri-marily in an ongoing collection effort for the office of the  clerk of this Court.  If, on the other hand, a prisoner was able  to pay the fees in full, our requiring him to do so whether or  not he proceeded with his appeal would leave him no disincentive to proceeding--if the prisoner would be responsible for  the full fees in any case, it would only make sense for him to  continue to pursue his appeal.  In contrast, by imposing the  fees only if a prisoner who has been denied in forma pauperis status proceeds further, our approach should give such a  prisoner every incentive to consider carefully whether his  appeal warrants further pursuit.

IV. Conclusion

14
Because Smith had three strikes at the time he filed this  appeal, we deny his application to proceed in forma pauperis  pursuant to 28 U.S.C. § 1915(g).  If he pays the filing fee  within fourteen days of receiving the court's opinion and  order, then his appeal may proceed.  If not, then it will be  dismissed.  See Wooten, 129 F.3d at 208.



Notes:


1
 In addition to the three dismissals cited by the district court,  the government argues that two other dismissals, both prior to the  enactment of the Prison Litigation Reform Act, should count as  strikes. Furthermore, our own examination reveals that Smith has  actually been the plaintiff in a total of seventeen civil actions while  incarcerated. Because we conclude that the three dismissals cited  by the district court all count as strikes under § 1915(g) for the  purposes of this appeal, we need not decide whether Smith has  other strikes as well.


2
 It may well be that Smith's appeal in this case was also  untimely.  However, because we determine that Smith is not entitled to proceed in forma pauperis, we do not actually reach this  issue.  Although Rule 4's timeliness requirements are jurisdictional,  determination of in forma pauperis status is in a sense logically  antecedent to the timeliness determination--an appellant who has  neither paid the full fees required nor been granted in forma  pauperis status is not entitled to have this court consider his appeal  at all, even to note untimeliness. We do not decide whether in  forma pauperis status is itself a jurisdictional issue.  But see  Garcia v. Silbert, 141 F.3d 1415, 1417 n.1 (10th Cir. 1998) (stating  that § 1915(g) is not jurisdictional and electing to reach merits  although § 1915(g) precluded appellant from proceeding without fee  payment);  Jackson v. Stinnett, 102 F.3d 132, 136 (5th Cir. 1996)  ("[T]here is no indication that Congress meant the new i.f.p. requirements to be jurisdictional.").  However, we do conclude that  satisfaction of this court's fee requirements, either by full payment  or by a grant of in forma pauperis status and submission of the  initial partial payment required by § 1915(b), is an administrative  hurdle that we may properly require an appellant to clear before  considering even our jurisdiction to actually hear the appeal.


3
 He will, however, have filed a notice of appeal, so that our  conclusion has no implications for when the appeal is filed for  purposes of F.R.A.P. 4.


