# United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Washington, and James Starr

> Court of Appeals for the Ninth Circuit · July 28, 1986 · 795 F.2d 796

URL: https://www.frixlaw.com/law-library/cases/9475094

## Case

- **Full name:** UNITED STATES of America, Plaintiff-Appellee, v. 30.64 ACRES OF LAND, MORE OR LESS, SITUATED IN KLICKITAT COUNTY, STATE OF WASHINGTON, Defendant, and James Starr, Defendant-Appellant
- **Court:** Court of Appeals for the Ninth Circuit
- **Decided:** July 28, 1986
- **Citations:** 795 F.2d 796; 55 U.S.L.W. 2150; 5 Fed. R. Serv. 3d 415; 1986 U.S. App. LEXIS 27590
- **Precedential status:** Published
- **Opinion:** Concurrence by Canby
- **Judges:** Wright, Canby, Wiggins
- **Cited by:** 572 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9475094

## How later opinions describe it (automated extraction)

- explaining that “the appointment of a 10 guardian ad litem is more than a mere formalism” because “[a] guardian ad litem is 11 authorized to act on behalf of his ward and may make all appropriate decisions in the course 12 of specific litigation.”
- holding that the district court “does not discharge [its] duty [under § 1915(e)(1)] if it makes no 25 attempt to request the assistance of volunteer counsel or, where the record is not otherwise clear, 26 explain its failure to do so”
- holding that the district court “does not discharge [its] duty [under § 1915(e)(1) ] if it makes no attempt to request the assistance of volunteer counsel or, where the record is not otherwise clear, explain its failure to do so”
- holding that the district court “does not discharge [its] duty [under § 1915(e)(1)] if it makes no attempt to request the assistance of volunteer counsel or, where the record is not otherwise clear, explain its failure to do so”

## Opinion text

CANBY, Circuit Judge,
concurring in the judgment:
I agree with the majority that this case should be reversed and remanded so that the district court can consider whether to secure counsel for Starr pursuant to 28 U.S.C. § 1915 (d), and whether to appoint a guardian ad litem pursuant to Fed.R.Civ.P. 17(c).
I would, however, refrain from ruling, as the majority does, that district courts lack the power to appoint (rather than request) counsel under § 1915(d). In the past, our court has regularly referred to the power to “appoint” counsel pursuant to § 1915(d). E.q., Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980); United States v. McQuade, 579 F.2d 1180, 1180-81 (1978), on appeal after remand, 647 F.2d 938 (9th Cir.1981); Alexander v. Ramsey, 539 F.2d 25, 26 (9th Cir.1976); Gardner v. Madden, 352 F.2d 792, 794 (9th Cir.1965). The majority acknowledges as much, but states that the use of the term “appoint” was careless and that we had never focused on the distinction between “appoint” and “request.”
All that is true, but I am not sure that I see the harm in the flexibility that we have lived with for so long, or the need to eliminate it when we have not been asked to do so. Surely the common practice, when relief under § 1915(d) is appropriate, is for the district court to seek a willing attorney to represent the indigent litigant. Yet there may have been, and may in the future be, exceptional occasions when the purpose of a § 1915(d) can only be served by imposing upon a reluctant attorney the duty of serving an indigent litigant. Without knowing the extent of such instances, and without briefing by interested parties, 1 *807 I am loathe to deny district courts this power. 2 I therefore do not join the opinion of the majority.
. It is admittedly difficult to secure adequate briefing of the issue in the normal course of *807 litigation; the question ususally arises only when the appellant is appearing pro se. Briefs could have been solicited from appropriate ami-ci curiae and from the government, however.
. The majority itself seems reluctant to close the door entirely. In footnote 16 of its opinion, the majority points out that the district courts may retain “inherent power" to appoint unwilling attorneys. If so, the denial of such power under § 1915(d) may turn out to have been a quixotic exercise.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9475094. Public record. Not legal advice.