U.S. First Circuit - The FindLaw 1st Circuit Court of Appeals News and Information Blog

Activist Loses Appeal for Appointed Counsel in Fight Against TSA Body Scanning

It has not easy being Sai. The activist, who goes by a mononym to reject any authority to make him use another name, got rejected by a federal appeals court in his case against the Transportation Security Administration. He wanted the court to appoint a lawyer for him in his fight against body scanning by the TSA.

The First Circuit Court of Appeal had one word for him: "No."

Remove Everything from Your Wallet

Sai, who claims poverty and funds "advocacy litigation" through donations, sued the TSA in pro per. He alleged the TSA and its agents mistreated him in Boston and San Francisco by requiring him to go through fully body scanners. He also said they discriminated against him on the basis of disability, and he sought appointment of counsel under the Rehabilitation Act.

The trial court denied the request, and the appellate court dismissed the appeal for an interlocutory review of the denial. The court said the act authorizes appointment of counsel, but does not fund it.

"(T)he mechanism is not funded, and it is subject to the district court's broad discretion," the panel said, declining to follow other jurisdictions that appoint counsel automatically in similar cases. "The difficulties in rationing the precious resource of volunteer lawyer services have been long acknowledged."

The court decided the trial judge did not abuse his discretion because the decision is not final. As the proceedings develop, the judge could appoint counsel later.

If Not Now, Then When?

Sai, who has pro bono counsel working for him in other cases, said he was perplexed by the decision. He said, in more than a word:

"How I am to know, without the benefit of telepathy, when such circumstances might occur -- enough that I'd be able to know when that day had come and meaningfully / nonfrivolously ask the court to reconsider -- is left as an exercise for the reader."

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