United States Court of Appeals 

For the First Circuit 

No. 15-2526 

SAI, 

Plaintiff, Appellant, 

v. 

TRANSPORTATION SECURITY ADMINISTRATION; US DEPT. OF HOMELAND 

SECURITY; UNITED STATES; MASSACHUSETTS STATE POLICE, Troop F / 

MAssport (MPD); MASSACHUSETTS PORT AUTHORITY; CITY OF BOSTON, in 

both official and individual capacities; TRICIA TONGE-RILEY, TSA 

STSO; SHANNA KUKLA, TSA STSO; PAUL COLEMAN, MPD Officer; JOHN 

FERRAGAMO, TSA security manager; ALEX RANSOM, TSA Office of 

Intelligence (TSA-OI); WILLIAM EVANS, TSA incident monitor; JEH 

CHARLES JOHNSON, DHS Secretary; JOHN S. PISTOLE; FRANCINE 

KERNER; MEGAN H. MACK; TAMARA KESSLER; KIMBERLY WALTON; WILLIAM 

MCKENNEY; SEENA FOSTER; ZACHARY BROMER; JEREMY BUZZELL; ERIKA 

LUCAS; UNKNOWN TSA COUNSEL, 

Defendants, Appellees. 

APPEAL FROM THE UNITED STATES DISTRICT COURT 

FOR THE DISTRICT OF MASSACHUSETTS 

[Hon. William G. Young, U.S. District Judge] 

Before 

Howard, Chief Judge, 

Thompson and Kayatta, Circuit Judges. 

Patricia E. Roberts, Tillman J. Breckenridge and Bailey & 

Glasser LLP, on brief for appellant. 

December 7, 2016 
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Per Curiam. Plaintiff-appellant Sai (identified by an 

adopted mononym) seeks interlocutory review of a district court 

decision denying him appointed counsel as a collateral order. 

Sai's allegations against the Transportation Security 

Administration and other defendants include violation of federal 

statutes prohibiting discriminatory treatment of disabled persons. 

The statutory scheme specifically authorizes court appointment of 

counsel. See 42 U.S.C. §§ 2000a-3(a), 12188(a)(1). However, the 

mechanism is not funded, and it is subject to the district court's 

broad discretion. The difficulties in rationing the precious 

resource of volunteer lawyer services have been long acknowledged. 

See Cooper v. A. Sargenti Co., Inc., 877 F.2d 170, 172 (2nd Cir. 

1989)(addressing situation in which "volunteer lawyer panels of 

the district courts are drowning in requests"). 

 We are aware of the circuit split on interlocutory review of 

denials of appointed counsel as collateral orders. See Ficken v. 

Alvarez, 146 F.3d 978, 980-81 (D.C. Cir. 1998)(collecting cases). 

We are also aware that some courts have distinguished refusals to 

"request an attorney to represent any person unable to afford 

counsel" under 28 U.S.C. § 1915(e) from refusals to "appoint an 

attorney" for claimants under federal anti-discrimination statutes 

"in such circumstances as the court may deem just." Id. In our 

estimate, this distinction is prudent, and we do not begin with an 

automatic assumption that appointment decisions under § 1915(e) 
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and under federal anti-discrimination statutes belong in a single 

category. Nonetheless, after giving the matter separate 

consideration, we are persuaded that the factors we identified in 

Appleby v. Meachum, 696 F.2d 145 (1983)(per curiam), for not 

categorizing the denial of appointed counsel under 28 U.S.C. 

§ 1915(e) as a collateral order logically also apply to denial of 

appointed-counsel requests under 42 U.S.C. §§ 2000a-3(a) and 

12188(a)(1). 

As a legal matter, an order denying appointment is inherently 

non-final because it is subject to revision as the case develops, 

however convinced or emphatic an individual judge appears to be at 

a given time. See Appleby, 696 F.2d at 147. The federal courts 

have identified several considerations (not constituting an 

exhaustive list) relevant to decisions on appointment of counsel 

for anti-discrimination claimants, including "the merits of 

plaintiff's case, the plaintiff's ability to pay for private 

counsel, his efforts to obtain a lawyer, the availability of 

counsel, and the plaintiff's ability to gather the facts and deal 

with the issues if unassisted by counsel." Cooper, 877 F.2d at 

172-74; see also Castner v. Colo. Springs Cablevision, 979 F.2d 

1417, 1420-21 (10th Cir. 1992) (identifying four factors most 

relevant for purposes of deciding whether to appoint counsel in a 

Title VII case: "(1) plaintiff's ability to afford counsel; (2) 

plaintiff's diligence in searching for counsel; [] (3) the merits 
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of plaintiff's case . . . [and (4)] the plaintiff's capacity to 

prepare and present the case without the aid of counsel"). These 

considerations are not static, and would be subject to reevaluation 

as a case proceeds after an initial denial of appointed counsel. 

In the course of proceedings, the merits might well become clearer. 

What a district court deems to be insufficient diligence might be 

supplemented by a litigant's additional efforts to obtain counsel, 

which could cast more light on the availability of counsel. The 

litigant's pro se capabilities might also become clearer as a case 

advances. We note that, in a disability-discrimination matter, 

it can be especially important to evaluate and monitor with care 

the effect a disability is having on the claimant's chances to 

seek out and obtain representation, and to conduct litigation on 

a pro se basis. Reevaluation of one or more of the abovesummarized considerations in view of later developments could 

alter a district court's treatment of an appointment request. We 

note that omitting the words "without prejudice" from an initial 

denial would not prevent reassessment at a later date. See 

Appleby, 696 F.2d at 147. 

In addition to the possibility of reassessment, as a practical 

matter, a wrongful denial of a request for appointed counsel should 

not easily escape review after entry of final judgment. "[I]f the 

district court erred at the outset in denying appointed counsel, 

its error would be presumptively prejudicial." Id. "[M]oreover, 
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. . . where appointive counsel is erroneously denied, a reviewing 

court may relieve plaintiff of any untoward consequences of his 

lack of counsel." Id. at n.3. Thus, while we decline at this 

time to join those circuits treating a denial of appointed counsel 

to an anti-discrimination claimant as an immediately reviewable 

collateral order, we intimate no doubts about the reviewability of 

such a denial in an appeal from a final judgment. Further, we 

emphasize that the presence in the record of a clear statement of 

reasons bearing on the district court's exercise of its discretion 

in matters of appointment, including discussion of any pertinent 

factors from the non-exhaustive list set out above, may prove 

crucial to this court's eventual review. See Castner, 979 F.2d 

at 1422-23 (remanding because record provided "no indication what 

considerations underlie[d] th[e] decision [to deny appointment], 

and the record d[id] not contain sufficient evidence from which 

[the court of appeals] c[ould] make an independent determination 

whether it was an abuse of discretion not to appoint counsel"). 

 For the reasons explained above, this interlocutory appeal is 

dismissed.