It's hard to tell which best explains a decision by the U.S. Court of Appeals for the Fourth Circuit last week when it shot down retired judge Richard Posner in his first foray as an advocate since leaving the bench. But one thing is clear: The unsigned per curiam opinion by judges William Byrd Traxler Jr., Allyson Duncan and James Wynn Jr. missed the whole point of the appeal—that pro se litigants deserve better. The seven-page decision doesn't even contain the phrase “pro se.” Since Posner stepped down from the Seventh Circuit last year, the most-cited legal scholar of all time has been on a mission to make the justice system more accessible and responsive to pro se litigants. He launched The Posner Center of Justice for Pro Se's to provide pro bono representation, as well as assisting pro se litigants behind the scenes to help them successfully represent themselves. And he took on the case of William Bond, a pro se litigant who had his lawsuit alleging “longstanding misconduct regarding the misuse of the U.S. Marshals Service and the FBI” curtly dismissed. Jenna GreeneBond's allegations—convoluted and conspiracy-minded—could well turn out to be without merit. But Posner was more focused on how the trial court judge responded when Bond tried to fix deficiencies in his original complaint. “Twice the district rejected Bond's effort to amend his complaint—both times without any explanation,” Posner wrote in his opening brief. “[T]he present appeal illustrates the errors a trial court too frequently commits when adjudicating a pro se litigant's claims.” Posner continued, “The Supreme Court and this court have repeatedly cautioned that 'a pro se complaint, however inartfully pleaded, must be held to less stringent standards than formal pleadings drafted by lawyers.' The trial court did not heed this requirement. It instead set the bar too high for a non-lawyer litigant.” (citations omitted) The Fourth Circuit responded with what amounted to a shrug. The panel ruled on Aug. 2 that the trial court judge, Senior U.S. District Judge David Faber in Maryland, didn't abuse his discretion. They pointed to his first ruling, where he tossed Bond's complaint on multiple grounds—failure to state a claim, lack of jurisdiction over defendants in their official capacity, qualified immunity, lack of standing, failure to exhaust administrative remedies. It is, admittedly, a long list, although Posner in a less-than-diplomatic reply brief pointed out that much of it came verbatim from the government's motion. “The district court's laziness leaves a pro se litigant with the perception that the judge did not independently analyze Bond's complaint,” Posner wrote. “The district court's actions create the impression of plagiarism and an abdication of its independent judicial duties." (It's possible Posner was not the most popular colleague on the federal bench.) As far as the Fourth Circuit was concerned, that was good enough. And the panel made this leap: Because Faber said he was relying on his earlier ruling, “we conclude that the only relevant basis for [Faber's] decision was a determination that the proposed second amended complaint was futile”—even if he didn't actually say that. “[T]he district court's failure to specifically articulate that rationale does not amount to an abuse of discretion,” the panel found. The decision amounts to blowing off everything Posner had said about the barriers facing pro se litigants. “The district court's refusal to provide any explanation for its dismissal cannot be condoned,” Posner wrote in his brief. “To do so would run counter to settled precedent. It would send the wrong message to pro se litigants who cannot afford counsel.” The Fourth Circuit in issuing an opinion likewise devoid of explanation just sent a message of its own: If you don't have a JD, too bad. We're not about to give you a break.
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