The Fight For Pro Se Rights Produces Another Damning Supreme Court Brief

Superstar legal team continues to fight for pro se litigants everywhere.

William Bond’s pro se struggle had already achieved legendary status when he managed to secure Judge Richard Posner (along with co-counsel Matthew Dowd) to aid him at the Fourth Circuit in challenging the district court’s unceremonious denial of his claim. For good measure, David Boies joined the case as it rocketed toward a Supreme Court showdown. Yesterday, Boies, his associates Joanna Wright and Emily Harris, Judge Posner, and Dowd filed their reply in the contested cert petition briefing and it’s a doozy.

As a refresher, Bond asserts a number of claims against government officials including Rod Rosenstein, who at the time was the U.S. Attorney in Maryland. The trial court dismissed his claims, mostly copying and pasting from the government’s brief, and when Bond sought leave to amend his complaint, he got denied repeatedly without explanation. That’s the issue that brings all this lawyerly firepower to a pro se litigant’s cause — how can the rule of law even function if the courts refuse to even explain the law to an aggrieved pro se? That’s a Kafkaesque result. Literally, that’s basically the plot of Before the Law.

You know a brief is going to get lit when the first subject heading is “you know, they didn’t cite a single case!” Funny… which side is the pro se again?

As discussed supra, Respondents do not cite a single case involving a pro se litigant’s motion to amend that supports their inapposite argument that the majority rule does not exist. When addressing the minority rule, Respondents’ myopia is consistent as they do not cite a single case involving or discussing a pro se litigant. Nor does Respondents’ purported authority support their argument that no circuit requires a district court to provide a justifying reason when denying a represented party’s motion to amend.

That’s not entirely fair. The government’s lawyers cite one case. It’s just that lone citation only embarrasses them more.

Respondents claim that Firestone v. Firestone, a case Petitioner cited (Pet. 14), serves as an example of a circuit that does not require the district court to provide a reason when denying leave to amend. Firestone held the opposite: “Turning then to the Rule 15(a) issue, we find error in the district court’s complete failure to provide reasons for refusing to grant leave to amend.”

Oops.

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The government comes across as the gang that can’t shoot straight, ignoring the fact that most circuits require courts to offer some explanation of a denial to allow the party to cure the complaint and then having the audacity to “All Lives Matter” this thing by asserting that offering guidance in an opinion that could assist a pro se litigant is unfair because all litigants should be treated the same.

If Respondents are arguing, however, that providing reasonable accommodations to pro se litigants is improper, the Eleventh Circuit disposes of this claim: “although pro se litigants are still bound by rules of procedure, this court has explained that they should not be held to the same level of knowledge as an attorney, and, therefore, additional notice may be appropriate.”

With almost a third of all civil litigants coming to the courts pro se — a function of rising legal costs and the underfunding of resources for low- and middle-class litigants — the accommodations we offer are more important than ever. When citizens representing themselves are routinely left at a marked disadvantage, it erodes faith in the justice system. The abuse of the gatekeeper function of the law is well-established. It starts when we insist on using a dead language to describe the condition of “I don’t have a lawyer.” The system is not above downright contempt for those who offer a fighting chance to the lawyerless like the court clerk who infamously lost her job for telling an inmate’s family where to find a model that would clear the procedural hurdles that had tripped them up.

This is an urgent issue of basic justice and exactly the sort of circuit split the Supreme Court should resolve. Hopefully they can put aside their highly pedigreed legal egos long enough to worry about the folks on the outside of Kafka’s door looking in.

Earlier: David Boies And Judge Posner Call Upon Supreme Court To Bring Justice To One-Third Of Federal Litigants Getting The Shaft
World’s Most Fortunate Pro Se Litigant Represented By Judge Posner Now Also Represented By David Boies
Judge Posner Loses Appeal In Laughably Lazy Fourth Circuit Opinion
Judge Posner Chastises District Court’s ‘Laziness’… And He’s Got A Point
Judge Posner Files First Brief Since Leaving The Bench, Lights Into Federal Judiciary
Judge Posner Taking On Pro Se Case After Fourth Circuit Did Something Incredibly Stupid

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