On September, 2, William & Mary Law School's Appellate and Supreme Court Clinic filed a Petition for Writ of Certiorari in the Supreme Court of the United States on behalf of Sai, an individual. Sai's petition presents the issue of whether orders denying appointment of counsel in civil cases should be immediately appealable under the collateral order doctrine. Sai's case is No. 16-287 on the Supreme Court's docket. The petition can be found on SCOTUSblog.
This case resulted from searches of Sai's belongings at Transportation Security Administration ("TSA") checkpoints. Sai is an individual with a disability that requires medical liquids to be kept on hand and alleges that the TSA has failed to comply with its own regulations, as well as other federal laws, concerning people with disabilities, searches of personal belongings and documents, and the carrying of medical liquids through checkpoints. Following Freedom of Information Act requests regarding the TSA's policies, to which the TSA failed to properly respond, Sai filed suit for production of the records in the U.S. District Court for the District of Columbia.
Sai requested that counsel be appointed, as he cannot afford counsel, and the district court denied the motion. Sai appealed the order denying appointment of counsel to the U.S. Court of Appeals for the District of Columbia Circuit, and the court of appeals subsequently dismissed the appeal on the ground that it lacked jurisdiction under Ficken v. Alvarez, 146 F.3d 978 (D.C. Cir. 1998). In Ficken v. Alvarez, the D.C. Circuit held that orders denying appointment of counsel in civil cases are not immediately appealable under the collateral order doctrine. The collateral order doctrine allows review of district court orders that: (1) "conclusively determine the disputed question"; (2) "resolve an important issue completely separate from the merits of the action"; and (3) are "effectively unreviewable on appeal from a final judgment." Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978).
The dismissal of Sai's appeal underscores a division among the circuits on the topic of appeals of orders denying appointment of counsel. All circuits have ruled, and they are divided on whether such orders are immediately appealable, or they must await final disposition. Reviewing Sai's case would allow the Supreme Court to resolve this conflict among the circuits on a topic that is of great importance to litigants, as well as courts reviewing motions for appointment of counsel. Denial of counsel to indigent litigants inevitably hobbles the case going-forward, and can cause irreparable damage to the pro se litigant's claims.
Amber Will '16 and Abigail Snider '16 were primarily responsible for drafting Sai's petition during their third-year studies. Students in the clinic practice under the supervision of Tillman J. Breckenridge, a partner at Bailey & Glasser LLP and director of the Law School's Appellate and Supreme Court Clinic.
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