[Congressional Bills 118th Congress]
[From the U.S. Government Publishing Office]
[S. 5499 Introduced in Senate (IS)]
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118th CONGRESS
2d Session
S. 5499
To amend title 28, United States Code, with regard to counsel for
persons proceeding in forma pauperis.
_______________________________________________________________________
IN THE SENATE OF THE UNITED STATES
December 12, 2024
Mr. Van Hollen introduced the following bill; which was read twice and
referred to the Committee on the Judiciary
_______________________________________________________________________
A BILL
To amend title 28, United States Code, with regard to counsel for
persons proceeding in forma pauperis.
Be it enacted by the Senate and House of Representatives of the
United States of America in Congress assembled,
SECTION 1. SHORT TITLE.
This Act may be cited as the ``Fair Access to Legal Counsel Act of
2024''.
SEC. 2. FINDINGS.
Congress finds the following:
(1) The majority of cases filed by pro se litigants in
Federal court involve basic human needs such as physical and
mental health, safety, employment, and housing.
(2) The cases described in paragraph (1) are also a matter
of civil rights.
(3) Pro se litigants are unable to navigate such complex
cases without the assistance of counsel.
SEC. 3. COUNSEL IN CASES WHERE PERSONS ARE PROCEEDING IN FORMA
PAUPERIS.
Subsection (e) of section 1915 of title 28, United States Code, is
amended to read as follows:
``(e)(1) If a person appears without counsel, including in a
proceeding under title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.) or title VIII of such Act (42 U.S.C. 2000f et seq.), the
court shall inform the person of their ability to request counsel if
unable to afford counsel. Upon granting such request, the court may
appoint counsel for that person.
``(2) In evaluating whether to grant the request, a court shall
consider all of the following on the record to the degree they are
known to the court:
``(A) The person's ability to articulate claims,
investigate facts, respond to dispositive motions, and
otherwise participate, including--
``(i) any barriers to access created by mental
health, intellectual, cognitive, or physical
disabilities, incarceration or other confinement,
language or other communication issues, and education
or literacy level;
``(ii) the person's education and literacy level;
and
``(iii) any assistance the person has received to
date, including the sufficiency of that assistance and
whether it will be available in the future.
``(B) The degree of factual investigation required.
``(C) The complexity of the legal and factual questions.
``(D) The degree to which the claims turn on credibility
determinations, including the need for cross-examination.
``(E) Whether the person has asserted any colorable claims.
``(F) The need for expert testimony.
``(G) The court's willingness to aid the person in
presenting claims by, for example, explaining how to introduce
and move for the admission of evidence.
``(H) Whether any opposing party is represented by counsel.
``(I) Any other factors the court considers relevant, other
than that pro se pleadings are construed more liberally by the
court.
``(3) The court may not deny a request on the grounds that it has
not yet ruled on dispositive motions, such as a motion to dismiss or
for summary judgment.
``(4) The court shall dismiss a case under this subsection if--
``(A) the court determines that the allegation that the
person is unable to afford counsel is untrue; or
``(B) in a case in which no request for appointment of
counsel is made after the person is informed of the right to
make such request, the action or appeal--
``(i) is frivolous or malicious;
``(ii) fails to state a claim on which relief may
be granted; or
``(iii) seeks monetary relief against a defendant
who is immune from such relief.
``(5) The court may require the person to attempt to obtain
assistance from private counsel prior to evaluating the factors above.
However, upon receiving a request for counsel, the court shall
communicate to the person the number of attempts required, if any, and
shall not consider the person's inability to secure private counsel as
an indication of a lack of colorable claims.
``(6) The court should consider whether to provisionally appoint
counsel for limited purposes, such as responding to a particular
motion, amending the complaint, representing a person at mediation,
conducting discovery, or investigating the claims for purposes of
providing a recommendation to the court as to whether a full
appointment is warranted.
``(7) Notwithstanding paragraphs (2) through (4), whenever the
court determines that the interests of justice so require,
representation may be provided for any financially eligible person who
is seeking relief under--
``(A) title VII of the Civil Rights Act of 1964 (42 U.S.C.
2000e et seq.); or
``(B) title VIII of the Civil Rights Act of 1964 (42 U.S.C.
2000f et seq.).
``(8) To the extent the consideration of the factors described in
paragraph (2)(A) involves personal details not otherwise at issue in
the case, the court should take steps to maintain the privacy of the
details including, for instance, sealed filings or in camera review.
The other party or parties to the action should not have access to
these personal details. To the extent the person has already shared
personal details by filing a publicly available document, the court
should advise him or her of the option to replace the filing with a
redacted or sealed copy in accordance with any applicable local or
Federal rules.
``(9) Any challenge to the appointment of counsel made by an
opposing party shall be limited to the potential prejudice to that
party, such as a delay in proceedings, and shall not concern the
personal factors considered by the court under paragraph (2)(A).''.
SEC. 4. DATA COLLECTION.
Not later than 2 years after the date of the enactment of this Act,
and every 2 years thereafter, the Director of the Administrative Office
of the United States Courts. shall submit to Congress and make publicly
available a report on the subsection (e) of section 1915 of title 28,
United States Code, as amended by section 3 of this Act, which shall
include the following:
(1) With respect to persons for whom counsel was provided
pursuant to a request under section 1915(e)(1) of title 28,
United States Code, the types of cases. With respect to a
person for whom counsel was provided pursuant to a request
under section 1915(e)(1) of title 28, United States Code, the
type of case, length of time spent by counsel, and the outcome
of the matter for which such counsel was provided and outcomes
of the matters for which such counsel was provided.
(2) Benefits related to increased access to counsel and any
remaining barriers to access to counsel pursuant to requests
under such section 1915(e).
(3) Any changes in the frequency of requests made by courts
under such section 1915(e).
(4) Other changes to the functioning of the Federal courts,
including increases in efficiency of adjudication of cases and
changes in the number of cases resolved in favor of the party
for whom counsel was provided pursuant to a request under such
section 1915(e).
(5) Suggested changes to such section 1915 to ensure
greater access to justice for low-income litigants.
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