Whether federal district courts exceed their statutory or Article III power by issuing proclamations that their dismissal 'counts as a 'strike' within the meaning of 28 U.S.C. § 1915(g)' even though that question is not presented and, if so, whether such ultra vires proclamations are immune from appellate review

QUESTION PRESENTED The Prison Litigation Reform Act provides that a prisoner who seeks an exemption from the federal filing fee based on poverty, commonly known as in forma pauperis (“IFP”), will have the request denied if he “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” certain qualifying grounds. 28 U.S.C. § 1915(g). Federal courts are in agreement that the interpretation and application of § 1915(g) arises when a prisoner files an action and requests IFP status, at which point district courts engage in a backward-looking analysis of whether the prisoner has three prior dismissals that satisfy all of the statutory requirements, often referred to as three “strikes.” Federal circuits are deeply divided, however, as to whether upon dismissing a prisoner’s lawsuit, district courts have the power to contemporaneously proclaim strikes—i.e., that § 1915(g) applies to their dismissal—even though that statutory question is not yet, and may never be, presented. Such proclamations are generally issued sua sponte without any explanation. And they are frequently incorrect, creating the possibility of misleading pro se plaintiffs that this issue— bearing on the key to the courthouse door—has been conclusively resolved. The question presented is: Whether federal district courts exceed their statutory or Article III power by issuing proclamations that their dismissal “counts as a ‘strike’ within the meaning of 28 U.S.C. § 1915(g)” even though that question is not presented and, if so, whether such ultra vires proclamations are immune from appellate review. @)