Case: 15-2356
Document: 00116942124
Page: 1 Date Filed: 01/07/2016 Page 1/4
Entry ID: 5967742
United States Court of Appeals for the First Circuit Sai Petitioner Civil Action No.: 152356
v. Peter Neffenger Respondent
Reply re. motion to compel provision of unpublished citations1 Respondent's reply makes two arguments in opposition: (a) that Petitioner has filed other litigation and has nonfree PACER access, and (b) that the FRAP and 1st Cir. rules do not explicitly require provision of citations in "free" (vs. "publicly accessible") databases. The first argument is inapposite at best. Respondent does not deny Petitioner's claims of being pro se or of meriting in forma pauperis status.2 The Second Circuit's decision in Lebron v. Sanders , 557 F.3d 76 (2d Cir. 2009) was premised only on these two factors — and the IFP prong was dicta . A litigant's vigorous exercise of Constitutional and statutory rights does not make them any less poor or less entitled to full and equal access to the courts.3
The response was docketed as also opposing Petitioner's motion for extension. As it has no mention of the extension, which was unopposed, this appears to be a mistake. 1
Petitioner's IFP status is currently pending a parallel collateral appeal to this Court to vindicate Petitioner's Constitutional right to privacy in an IFP affidavit. 2
Respondent is perhaps trying to imply that Petitioner's litigation is frivolous or vexatious. This is belied by the fact that Petitioner substantially prevailed on the one case decided on the merits to date. 3
See Sai v. DHS et al., No. 1:14cv1876 (D. D.C. Dec. 15, 2015), holding that TSA "manifestly failed to comply with its obligation" to respond to Petitioner's SFO grievance, constituting "agency action unlawfully withheld or unreasonably delayed", p. 13, "that Defendants’ 2.75year delay in responding to [Petitioner's] SFO complaint is “unreasonable”", and that "[i]t is difficult
Case: 15-2356
Document: 00116942124
Page: 2 Date Filed: 01/07/2016 Page 2/4
Entry ID: 5967742
The second argument is belied by the Second Circuit's holding in Lebron, the notes of Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, and the rule against surplusage. The Second Circuit explicitly premised its holding, mandating the provision of authorities to a pro se plaintiff despite the lack of a rule in force at the relevant times, on the the "impact on the appearance of justice", the "availability to pro se indigent litigants of case authorities available only in feebased electronic databases and other accesslimited, feebased publications", and "access, without cost , to review the case law relied upon". It further emphasized that most "case law is available to pro se or indigent parties freeofcharge ". Lebron at 7879 (emphasis added). The Committee on Rules of Practice and Procedure of the Judicial Conference of the United States, in considering Petitioner's proposal for a rule change on this exact issue, has apparently agreed — though considering it a matter of local practice, of widely established custom, or encompassed by FRAP 32.1(b), which therefore may not require a new federal rule.4
to envision the “rule of reason” that would permit an agency" to act as TSA did, p. 30. See also amici briefs filed by Maryland Volunteer Lawyers Service, Western Center on Law and Poverty and the Legal Aid Association of California in support of Petitioner's petition for certiorari , Sai v. USPS, No. 14646, __ US __ (2014) (where a BIO was requested). The cert petition dealt with the IFP privacy issue now raised to this Court by pro bono counsel in Sai v. TSA et al., No. 152526 (1st Cir.). ( Amici briefs, as well as the cert petition, BIO, reply, and pro se motions below, are available at http://s.ai/ifp .) Petitioner's awkwardness in motions practice demonstrates inexperience and lack of training, which Petitioner freely admits. This is the inevitable correlate of learning by doing. However, demonstrated success on the merits — or amicus support by widelyrespected legal aid organizations — is hardly the mark of a frivolous or vexatious litigant. "Pro se litigants generally do not subscribe to the kinds of databases to which attorneys have access, and doing so merely to pursue a single case might be unreasonably expensive. … As to 4
Case: 15-2356
Document: 00116942124
Page: 3 Date Filed: 01/07/2016 Page 3/4
Entry ID: 5967742
Finally, by the rule against surplusage, FRAP 32.1(b) must be read to have substantive meaning. If, as Respondent would have it, "available in a publicly accessible electronic database" were to include feebased databases such as PACER, Westlaw, Lexis, etc., then there is simply no such thing as a "a federal judicial opinion, order, judgment, or other written disposition that is not available in a publicly accessible electronic database", and the rule has no meaning. Essentially all opinions, orders, judgments, etc., at least from courts within the United States, are available in such feebased databases. Since the rule cannot be read as a nullity, " publicly accessible" must, as Lebron held, mean that it is accessible without charge . Petitioner's access to authorities relied upon by Respondent and this Court, without cost, is necessary for Petitioner to fairly proceed pro se .5 Petitioner asks for no more than the simple and widely established courtesy which Respondent rejected when asked informally. 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 filings in the courts of appeals … the concerns motivating this suggestion by Sai may already be largely addressed by FRAP 32.1(b)" Adv. Com. R. App. P. Tab 12A re. 15APE, p. 464 / 4. The appellate advisory committee appears uncertain about whether or not FRAP 32.1(b) covers feebased databases, but seems to believe that Petitioner's proposed rule is encompassed by it, implying that FRAP 32.1(b) does require provision of citations not freely available. Petitioner further notes that Petitioner does not presently have access to a U.S. law library. Even were this not the case, paper is not an adequate replacement for electronic access — both for reasons of disability (e.g. Petitioner's right of electronic access to documents under the Rehabilitation Act, 29 U.S. Code § 794d ) and modern necessity (e.g. this Court's rule that papers be submitted with native electronic PDFs, and Petitioner's exclusively electronic practice). 5
Case: 15-2356
Document: 00116942124
Page: 4 Date Filed: 01/07/2016 Page 4/4
Entry ID: 5967742
Certificate of service I hereby certify that today, January 7, 2015, I filed this paper on Respondent by CM/ECF.
