On November 13, 2015, the US Court of Appeals for the Fifth Circuit in Naranjo v. Thompson, held that federal courts have the inherent authority to order attorneys to represent litigants without compensation ( (5th Cir. Nov. 13, 2015)).

Mario Naranjo, a prison inmate, filed a civil rights action under 42 U.S.C. § 1983 against the company managing the prison and several of its directors and employees. The defendants moved for summary judgment before discovery. Naranjo, proceeding in forma pauperis under 28 U.S.C. § 1915, initially failed to file a timely response. After two warnings from the magistrate judge and some procedural mishaps, Naranjo opposed the motion and moved for appointment of counsel under 28 U.S.C. § 1915(e)(1). The magistrate judge denied this motion, holding that the case was at an early stage and that Naranjo could adequately represent himself.

While the summary judgment motion was pending, Naranjo sought discovery. The defendants refused to produce certain documents, claiming that letting an inmate see them would jeopardize prison security. The magistrate judge ultimately ordered the defendants to file those documents under seal, but Naranjo could not access them without counsel.

Naranjo moved a second time for appointment of counsel one week before a scheduled evidentiary hearing on the summary judgment motion. He indicated that he did not have the legal skills to participate meaningfully in the hearing. At the hearing, Naranjo did not introduce any evidence nor cross-examine the witnesses, repeating again that he did not have the legal skills required for the hearing. He also noted that he did not have access to the sealed documents, even though defense counsel questioned one of their witnesses about them.

Five months after the evidentiary hearing, the district court found that the circumstances surrounding the case justified representation and that Naranjo had demonstrated exceptional circumstances to warrant appointment. The district court stated that the existence of sealed evidence weighed in favor of appointing counsel since Naranjo could not view it himself as an inmate. The court also noted Naranjo's limitations in litigating the case.

However, the district court denied the motion, stating that that it could not appoint counsel because none of the licensed attorneys near the prison could accept the case pro bono and the court could not pay them. The court also held that it lacked statutory authority to appoint unpaid counsel under the US Supreme Court's decision in Mallard v. U.S. Dist. Court for S. Dist. of Iowa (109 S.Ct. 1814 (1989)). The district court urged Naranjo to appeal to the Fifth Circuit for guidance, which Naranjo did.

The Fifth Circuit held that federal courts have the inherent authority to order attorneys to represent litigants without compensation. Although the Fifth Circuit agreed that district courts lack statutory authority to appoint unpaid counsel, it stated that Mallard did not reach the question of inherent authority. It concluded that the very existence of federal courts gives them "inherent power to take action 'essential to the administration of justice.'" This includes, in appropriate circumstances, the power to appoint unpaid counsel.

Where a district court has determined that exceptional circumstances warrant appointment of counsel and has unsuccessfully attempted to secure a non-compulsory appointment, the court may, as a matter of last resort, invoke this power to represent an indigent civil rights litigation pro bono. Here, the Fifth Circuit found that the district court did not err in finding that counsel should have been appointed because of the sealed discovery and the likelihood of conflicting testimony.

Because the district court found exceptional circumstances to warrant appointment of counsel, the Fifth Circuit found that the district court abused its discretion by not considering the option to order representation without pay. The Fifth Circuit vacated the denial of Naranjo's second motion for appointment of counsel and remanded the case.