IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
May 16, 2013
JOSE M. BEJAR, PLAINTIFF,
DEPARTMENT OF VETERAN AFFAIRS, ERIC K. SHINSEKI, SECRETARY, DEFENDANT.
The opinion of the court was delivered by: Gerald L. Rushfelt United States Magistrate Judge
MEMORANDUM AND ORDER
Before the Court is a Motion for Appointment of Counsel (ECF No. 3) filed by Plaintiff. For the reasons set out below, the Court denies the motion.
I. Relevant Factual Background
Plaintiff pro se commenced this action on May 10, 2013, by filing a civil complaint and paying the filing fee. His complaint alleges retaliation and harassment under Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. §§ 2000e, et seq.
II. Motion for Appointment of Counsel
In general, there is no constitutional right to appointment of counsel in a civil case.*fn1 For some types of cases, however, Congress has provided statutory authority to appoint counsel. For actions brought under Title VII, 42 U.S.C. § 2000e-5(f)(1) -- provides discretionary authority for appointing counsel "in such circumstances as the court may deem just."*fn2 This statute provides no statutory right to counsel -- it is merely a "a statutory right to request appointed counsel at court expense."*fn3 The Court has "extremely broad" discretion to appoint counsel under § 2000e-5(f)(1).*fn4 For guidance the Tenth Circuit has identified factors that courts consider when evaluating a motion for appointment of counsel. Appointment of counsel is only appropriate under § 2000e-5(f)(1) after the plaintiff has affirmatively shown "(1) financial inability to pay for counsel; (2) diligence in attempting to secure counsel; and (3) meritorious allegations of discrimination."*fn5 As "an aid in exercising discretion" in close cases, the Court should also consider whether the plaintiff has the "capacity to present the case without counsel."*fn6
When considering appointment of counsel, the Court remains mindful that Congress has provided no mechanism for compensating appointed attorneys.*fn7 "Thoughtful and prudent use of the appointment power is necessary so that willing counsel may be located without the need to make coercive appointments. The indiscriminate appointment of volunteer counsel to undeserving claims will waste precious resource and may discourage attorneys from donating their time."*fn8 Finally, the
Court notes that it has a limited pool of volunteer attorneys from whom it may appoint counsel.
A. Financial Ability to Secure Counsel
Plaintiff has paid the filing fee for this action. He also states in his motion that he is financially able to retain his own counsel. Given this information, this factor clearly does not support appointment of counsel.
B. Efforts to Secure Counsel
To obtain appointment of counsel, a party must make diligent efforts to secure counsel. This typically requires the party to meet with and discuss the case with at least five attorneys.*fn9 Plaintiff states that he has contacted six attorneys. But he does not state the nature of the contact or provide any indication that he personally met with and conferred with the attorneys about his case. Depending on the nature of the contacts these efforts may be sufficient. Merely contacting five or more attorneys, however, does not exhibit sufficient diligence to warrant appointment of counsel.*fn10
Based on the information before the Court, this factor does not support appointment of counsel.
C. Merit of Allegations
To warrant appointment of counsel, Plaintiff must also affirmatively show that he asserts meritorious claims. But he makes no attempt to demonstrate the merits of his claims in his motion for appointment. Consequently, the Court is left to consider his complaint. His complaint standing alone, however, provides an insufficient basis to find that this action has sufficient merit to warrant appointment of counsel. A general review of the complaint provides no strong indicia regarding the merits of the claims. Moreover, an attachment to the complaint shows that the Equal Employment Opportunity Commission dismissed one claim and found no discrimination on other claims asserted in Plaintiff's charge of discrimination.
When considering the merits of Title VII claims, an "administrative
finding is a 'highly probative' factor to be considered."*fn11
A "determination that there is probable cause to believe the
complainant is a victim of discrimination creates a rebuttable
presumption that the plaintiff's case has sufficient merit to satisfy
this factor in the analysis of whether to appoint
counsel."*fn12 On the
other hand, unless the complaint is legally insufficient to state a
claim, the courts should ordinarily "review the investigative file and
allow the pro se plaintiff an opportunity to rebut" adverse
conclusions before determining that the merits of the claims do not
support appointment of counsel.*fn13
But "an adverse administrative finding coupled with many attorneys declining to represent the plaintiff, may 'provide strong evidence that plaintiff's case lacks merit.'"*fn14 This is "especially true in cases, such as this, in which attorneys often agree to represent a party for a fee contingent only upon the success of the claim."*fn15 And when the client has funds to pay an attorney, an inability to find an attorney to take the case seems to be an even greater indicator that the case lacks merits.
In light of the information before it, the Court does not find that Plaintiff has carried his burden to show that his claims are of such merit as to necessarily warrant appointment of counsel.*fn16
For the foregoing reasons, the Court denies the Motion for Appointment of Counsel (ECF No. 3) filed by Plaintiff.
IT IS SO ORDERED.
Gerald L. Rushfelt