Vickers v. Department of Veteran's Affairs

Background

Asiya Vickers applied for the court to request pro bono counsel—volunteer legal representation—for limited representation during settlement negotiations and depositions. The opinion does not describe the underlying claims in the case.

Legal standard

Under 28 U.S.C. § 1915(e)(1), a court may request an attorney to represent a person who cannot afford counsel, but it cannot require an attorney to volunteer or provide funds to pay the attorney. Courts must use this authority sparingly. Under the factors described by the Court of Appeals for the Second Circuit, the litigant must first show indigence, meaning an inability to afford counsel. The court then considers whether the claim appears likely to have substance and, if so, factors such as the litigant’s ability to investigate and present the case, the complexity of the legal issues, the need for cross-examination, and efforts to obtain counsel.

Court’s analysis

The court was sympathetic to Vickers’s difficulty obtaining counsel but found that she had not filed or been granted a request to proceed without paying court fees. Because she had not demonstrated that she was unable to afford counsel, the court held that she did not qualify for a request for pro bono counsel under Section 1915(e)(1). The court stated that Vickers could apply to proceed without paying court fees and, if that application were granted, could then refile her application for limited pro bono representation.

Ruling

Judge Dale E. Ho denied Vickers’s Application for the Court to Request Pro Bono Counsel for Limited Representation for Settlement Negotiations and Depositions without prejudice to renewal. The court also certified under 28 U.S.C. § 1915(a)(3) that an appeal from the order would not be taken in good faith and denied permission to proceed without paying court fees for purposes of an appeal.