Although Klein is pro se on appeal, she was represented by counsel before the district court. Thus she had adequate opportunity to make her case by presenting facts showing that what appeared to be rather routine conduct was instead protected speech involving matters of public concern. No doubt had she presented the same bundle of files to the offices of the FBI or the U.S. Attorney, a full explanation of reasons would be necessary before acceptance by either agency. Because Klein failed to create genuine issues as to whether her actions were expressive conduct or whether her interests outweighed those of the state, and because either defect is fatal to her case, summary judgment was proper. That being said, although the case will be remanded for further proceedings, it is not necessary that the district court appoint counsel on remand.
Civil litigants have neither a constitutional nor statutory right to appointed counsel.
While 28 U.S.C. sec. As to other bases for appointing counsel, those are left to the sound discretion of the trial court, and we should not invade this domain lightly. The record does not indicate that any of these factors compels the appointment of counsel in this case. Rather, from Klein's pro se brief we see that she is cognizant of the applicable cases and the relevant facts, and her case fails simply because she has no claim, and not because of some shortcoming in the litigation process. As noted, before the district court Klein was represented by two attorneys.