Non-CJA Assignments

Local Rule 46(d) provides for the discretionary assignment of counsel in “indigent cases” not covered by the Criminal Justice Act.

If the court determines that formal briefing and possible oral argument would be of assistance but the pro se party is not proceeding in forma pauperis, the party is advised of the court’s interest in formal briefing and oral argument and asked to either retain counsel or file an application to proceed in forma pauperis so that the court can consider the party’s financial eligibility for assignment of counsel under 28 U.S.C. § 1915(e)(1) ("The court may request an attorney to represent any person unable to afford counsel.")

If the party files an application to proceed in forma pauperis, the court considers the party’s financial affidavit and, if it determines that the party is unable to afford counsel, assigns counsel to represent the litigant.

If the party is not financially eligible for assigned counsel but the case would benefit from formal briefing and possible oral argument, the court may consider whether to assign “amicus counsel” to brief and argue the case as a “friend of the court.”

Non-CJA assignments of counsel may be made in the following case types:

• Civil rights cases, including prisoner civil rights and employment discrimination
• Civil cases of any type that do not implicate an interest protected by the CJA
• Agency review, including black lung, workers’ compensation, and immigration
• Tax cases
• Bankruptcy cases

In cases in which the court finds that formal briefing and oral argument would aid the decision-making process but the pro se party is not financially eligible for appointment of counsel, the court may assign counsel to brief and argue the case as amicus curiae.  If assigned as amicus curiae, counsel is not representing a party but is instead presenting argument as a friend of the court.

Amicus counsel assigned by the court may file a brief of 13,000 rather than 6,500 words. If proceeding on behalf of an appellant, assigned amicus counsel must file an appendix with the opening brief and may also file a reply brief. Brief covers for amicus counsel briefs are green, but the briefs otherwise comply with the requirements for a party's brief. 

Amicus counsel receives the full twenty minutes of argument time allotted to a party without need to file a motion for leave to participate in oral argument.

Local Rule 34(b) provides for use of an informal briefing schedule in pro se cases and further provides that the court “initially reviews cases that are informally briefed under its procedures set forth in Local Rule 34(a) pertaining to pre-argument review.” Local Rule 34(b) further provides:

If the panel reviewing an informal brief submitted by an indigent pro se litigant determines that further briefing and possible oral argument would be of assistance, counsel will be appointed and directed to file additional formal briefs. In any appeal that has been informally briefed, the Court may direct that additional briefs be filed prior to oral argument.

Local Rule 46(d) similarly states: "[S]uch cases receive a preliminary review before a decision is made regarding appointment of counsel. In assigning counsel, the Court may direct counsel to brief a particular issue, but counsel is free to address any additional issues which appear to be meritorious."

Counsel seeking assignment to represent an indigent pro se litigant should file a motion showing why formal briefing and possible argument are necessary on appeal.

In civil, civil rights, agency, tax, and bankruptcy appeals not covered by the Criminal Justice Act, counsel is assigned from the court's Discretionary Panel after the court has authorized assignment under 28 U.S.C. § 1915(e)(1) or has directed assignment of amicus counsel.