II 

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. 

1 Be it enacted by the Senate and House of Representa2 tives of the United States of America in Congress assembled, 

3 SECTION 1. SHORT TITLE. 

4 This Act may be cited as the ‘‘Fair Access to Legal 

5 Counsel Act of 2024’’. 

6 SEC. 2. FINDINGS. 

7 Congress finds the following: 

8 (1) The majority of cases filed by pro se liti9 gants in Federal court involve basic human needs 


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1 such as physical and mental health, safety, employ2 ment, and housing. 

3 (2) The cases described in paragraph (1) are 

4 also a matter of civil rights. 

5 (3) Pro se litigants are unable to navigate such 

6 complex cases without the assistance of counsel. 

7 SEC. 3. COUNSEL IN CASES WHERE PERSONS ARE PRO8 CEEDING IN FORMA PAUPERIS. 

9 Subsection (e) of section 1915 of title 28, United 

10 States Code, is amended to read as follows: 

11 ‘‘(e)(1) If a person appears without counsel, including 

12 in a proceeding under title VII of the Civil Rights Act 

13 of 1964 (42 U.S.C. 2000e et seq.) or title VIII of such 

14 Act (42 U.S.C. 2000f et seq.), the court shall inform the 

15 person of their ability to request counsel if unable to af16 ford counsel. Upon granting such request, the court may 

17 appoint counsel for that person. 

18 ‘‘(2) In evaluating whether to grant the request, a 

19 court shall consider all of the following on the record to 

20 the degree they are known to the court: 

21 ‘‘(A) The person’s ability to articulate claims, 

22 investigate facts, respond to dispositive motions, and 

23 otherwise participate, including— 

24 ‘‘(i) any barriers to access created by men25 tal health, intellectual, cognitive, or physical 


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1 disabilities, incarceration or other confinement, 

2 language or other communication issues, and 

3 education or literacy level; 

4 ‘‘(ii) the person’s education and literacy 

5 level; and 

6 ‘‘(iii) any assistance the person has re7 ceived to date, including the sufficiency of that 

8 assistance and whether it will be available in 

9 the future. 

10 ‘‘(B) The degree of factual investigation re11 quired. 

12 ‘‘(C) The complexity of the legal and factual 

13 questions. 

14 ‘‘(D) The degree to which the claims turn on 

15 credibility determinations, including the need for 

16 cross-examination. 

17 ‘‘(E) Whether the person has asserted any 

18 colorable claims. 

19 ‘‘(F) The need for expert testimony. 

20 ‘‘(G) The court’s willingness to aid the person 

21 in presenting claims by, for example, explaining how 

22 to introduce and move for the admission of evidence. 

23 ‘‘(H) Whether any opposing party is rep24 resented by counsel. 


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1 ‘‘(I) Any other factors the court considers rel2 evant, other than that pro se pleadings are con3 strued more liberally by the court. 

4 ‘‘(3) The court may not deny a request on the 

5 grounds that it has not yet ruled on dispositive motions, 

6 such as a motion to dismiss or for summary judgment. 

7 ‘‘(4) The court shall dismiss a case under this sub8 section if— 

9 ‘‘(A) the court determines that the allegation 

10 that the person is unable to afford counsel is untrue; 

11 or 

12 ‘‘(B) in a case in which no request for appoint13 ment of counsel is made after the person is informed 

14 of the right to make such request, the action or ap15 peal— 

16 ‘‘(i) is frivolous or malicious; 

17 ‘‘(ii) fails to state a claim on which relief 

18 may be granted; or 

19 ‘‘(iii) seeks monetary relief against a de20 fendant who is immune from such relief. 

21 ‘‘(5) The court may require the person to attempt 

22 to obtain assistance from private counsel prior to evalu23 ating the factors above. However, upon receiving a request 

24 for counsel, the court shall communicate to the person the 

25 number of attempts required, if any, and shall not conVerDate Sep 11 2014 04:23 Jan 17, 2025 Jkt 059200 PO 00000 Frm 00004 Fmt 6652 Sfmt 6201 E:\BILLS\S5499.IS S5499

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1 sider the person’s inability to secure private counsel as an 

2 indication of a lack of colorable claims. 

3 ‘‘(6) The court should consider whether to provision4 ally appoint counsel for limited purposes, such as respond5 ing to a particular motion, amending the complaint, rep6 resenting a person at mediation, conducting discovery, or 

7 investigating the claims for purposes of providing a rec8 ommendation to the court as to whether a full appoint9 ment is warranted. 

10 ‘‘(7) Notwithstanding paragraphs (2) through (4), 

11 whenever the court determines that the interests of justice 

12 so require, representation may be provided for any finan13 cially eligible person who is seeking relief under— 

14 ‘‘(A) title VII of the Civil Rights Act of 1964 

15 (42 U.S.C. 2000e et seq.); or 

16 ‘‘(B) title VIII of the Civil Rights Act of 1964 

17 (42 U.S.C. 2000f et seq.). 

18 ‘‘(8) To the extent the consideration of the factors 

19 described in paragraph (2)(A) involves personal details not 

20 otherwise at issue in the case, the court should take steps 

21 to maintain the privacy of the details including, for in22 stance, sealed filings or in camera review. The other party 

23 or parties to the action should not have access to these 

24 personal details. To the extent the person has already 

25 shared personal details by filing a publicly available docuVerDate Sep 11 2014 04:23 Jan 17, 2025 Jkt 059200 PO 00000 Frm 00005 Fmt 6652 Sfmt 6201 E:\BILLS\S5499.IS S5499

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1 ment, the court should advise him or her of the option 

2 to replace the filing with a redacted or sealed copy in ac3 cordance with any applicable local or Federal rules. 

4 ‘‘(9) Any challenge to the appointment of counsel 

5 made by an opposing party shall be limited to the potential 

6 prejudice to that party, such as a delay in proceedings, 

7 and shall not concern the personal factors considered by 

8 the court under paragraph (2)(A).’’. 

9 SEC. 4. DATA COLLECTION. 

10 Not later than 2 years after the date of the enact11 ment of this Act, and every 2 years thereafter, the Direc12 tor of the Administrative Office of the United States 

13 Courts. shall submit to Congress and make publicly avail14 able a report on the subsection (e) of section 1915 of title 

15 28, United States Code, as amended by section 3 of this 

16 Act, which shall include the following: 

17 (1) With respect to persons for whom counsel 

18 was provided pursuant to a request under section 

19 1915(e)(1) of title 28, United States Code, the types 

20 of cases. With respect to a person for whom counsel 

21 was provided pursuant to a request under section 

22 1915(e)(1) of title 28, United States Code, the type 

23 of case, length of time spent by counsel, and the out24 come of the matter for which such counsel was proVerDate Sep 11 2014 04:23 Jan 17, 2025 Jkt 059200 PO 00000 Frm 00006 Fmt 6652 Sfmt 6201 E:\BILLS\S5499.IS S5499

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1 vided and outcomes of the matters for which such 

2 counsel was provided. 

3 (2) Benefits related to increased access to coun4 sel and any remaining barriers to access to counsel 

5 pursuant to requests under such section 1915(e). 

6 (3) Any changes in the frequency of requests 

7 made by courts under such section 1915(e). 

8 (4) Other changes to the functioning of the 

9 Federal courts, including increases in efficiency of 

10 adjudication of cases and changes in the number of 

11 cases resolved in favor of the party for whom counsel 

12 was provided pursuant to a request under such sec13 tion 1915(e). 

14 (5) Suggested changes to such section 1915 to 

15 ensure greater access to justice for low-income liti16 gants. 

Æ 


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