Case: 15-2356
Document: 00116940927
Page: 1 Date Filed: 01/05/2016 Page 1/4
Entry ID: 5966953
United States Court of Appeals for the First Circuit Sai Petitioner Civil Action No.: 152356
v. Peter Neffenger Respondent
Motion to compel provision of unpublished citations, and to toll Petitioner's response times pending same Respondent, in motions, has referred multiple times to citations that are not published in the Federal Reporter, Federal Supplement, United States Reports, or other freely available sources.1 Petitioner, who is pro se and has asked to proceed in forma pauperis (pending this Court's ruling on Petitioner's right to privacy on IFP affidavits), does not have free access to other citations.2 On Dec. 31, 2015, Petitioner requested that Respondent provide copies of these citations, as separate, native format PDFs. Respondent's counsel, Sharon Swingle, refused to respond.
Respondent's Dec. 29, 2015 motion, p. 12: Corbett v. US , No. 11 12426BB (11th Cir. Jul. 27, 2011); Corbett v. US , No. 10cv24106 (S.D. Fla. Mar. 30, 2011); EPIC v. DHS , No. 10157 (D.C. Cir. Sept. 1, 2010); Blitz v. Napolitano , No. 1:10cv930 (M.D.N.C.), transcript of 12/10/2010 hearing, and 12/13/2010 order. 1
Respondent's Dec. 31, 2015 motion, p. 56: Story Preservation Assoc. v. FAA , No. 151247 (D.C. Cir. Oct. 2, 2015), Corbett v. TSA , No. 1510757 (11th Cir. June 1, 2015), Corbett v. TSA , No. 1510757 (11th Cir. filed Feb. 23, 2015), Corbett v. TSA , No. 1510757 (11th Cir. Apr. 30, 2015), Redfern v. Napolitano , No. 111805 (1st Cir. Aug. 14, 2012). Petitioner primarily uses Google Scholar (free) and PACER (nonfree). Google Scholar does not generally have F. App., F.R.D., LEXIS, WL, or unpublished citations available. It does generally have F., F. 2d, F. 3d, F. Supp., U.S., and S. Ct. series publications. 2
Case: 15-2356
Document: 00116940927
Page: 2 Date Filed: 01/05/2016 Page 2/4
Entry ID: 5966953
Although this Circuit does not have a rule on the matter, nor any case law Petitioner is aware of, the Second Circuit has a case directly on point. On April 11, 2008, S.D. N.Y. and E.D. N.Y. adopted L. Civ. R. 7.1(c) (later renumbered 7.2), requiring authorities to be provided to pro se litigants, whether or not proceeding IFP. In Lebron v. Sanders , 557 F.3d 76 (2d Cir. 2009) , regarding a motion that the pro se plaintiff had made before the adoption of this rule, the court ruled in favor of the plaintiff based on defendant counsel's refusal to provide cited authorities to plaintiff, and ordered them to be provided: "[LCvR 7.1(c)] was not effective until after both appellee had filed its memorandum of law and Lebron had subsequently requested the unpublished opinions from appellee. Nonetheless, we are concerned about the impact on the appearance of justice when pro se litigants may not have financial access to case authorities that form the basis of a court's decision, thereby hampering the litigants' opportunities to understand and assert their legal rights. … The availability to pro se indigent litigants of case authorities available only in feebased electronic databases and other accesslimited, feebased publications like the Federal Appendix is an important issue for courts to consider." Concurrence , Davis v. Lafler , 692 F. Supp. 2d 705, 706 (E.D. Mich. 2009) . See also 2d Cir. R. 32.1.1(d), D. Utah Civ. R. 72(c), and FRAP 32.1(b). Accordingly, Petitioner hereby moves that: 1. Respondent be compelled to provide Petitioner3 with copies of every citation referred to by Respondent or this Court that is not freely available online4 — both for papers already filed and all future papers in this case;
3
(by email, as separate, native format PDFs)
Respondent may presume that any paper (except transcripts) in cases to which Petitioner is a party, as well as F., F. 2d, F. 3d, F. Supp., U.S., S. Ct., and Fed. Reg. series publications, are freely available. Petitioner will promptly notify Respondent if this is not the case. 4
Case: 15-2356
Document: 00116940927
Page: 3 Date Filed: 01/05/2016 Page 3/4
Entry ID: 5966953
2. Petitioner's response times be tolled, per FRAP 26(b), pending electronic service of such citations — i.e. that the FRAP 26(a)(1)(A) "event that triggers the period" be the later of the usual event or Petitioner's receipt of the related unpublished citations; and 3. this Court amend its rules to adopt an equivalent of E.D. N.Y. / S.D. N.Y. L. Civ. R. 7.2, and direct the district courts within its jurisdiction to do likewise.5 Respectfully submitted, Sai, petitioner pro se
[email protected] +1 510 394 4724 phone / +1 206 203 2827 fax 500 Westover Dr. #4514, Sanford, NC 273308941
Petitioner formally proposed this change to the Committee on Rules of Practice and Procedure of the Judicial Conference of the United States on Sept. 7, 2015. See rule suggestions 15APE , 15CVEE , 15BKI , & 15CRD , part 3. 5
They are currently pending consideration. See Advisory Committee on Rules of Civil Procedure, November 2015 agenda book, tab 11E, p. 493496; Adv. Com. R. Appellate P., October 2015 agenda book, tab 12A, p. 459465; Comm. on R. of P. & P. standing agenda book, January 2016, draft appellate and civil advisory minutes, p. 151158, 439440 — all attached .
Case: 15-2356
Document: 00116940927
Page: 4 Date Filed: 01/05/2016 Page 4/4
Entry ID: 5966953
Certificate of service I hereby certify that today, January 5, 2015, I filed this paper on Respondent by CM/ECF.
