737 F.2d 1173 (D.C. Cir. 1984), 83-1151, Poindexter v. F.B.I.

Docket Nº:83-1151.
Citation:737 F.2d 1173
Party Name:Aljoe POINDEXTER, Appellant, v. FEDERAL BUREAU OF INVESTIGATION.
Case Date:June 26, 1984
Court:United States Courts of Appeals, Court of Appeals for the District of Columbia Circuit
 
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Page 1173

737 F.2d 1173 (D.C. Cir. 1984)

Aljoe POINDEXTER, Appellant,

v.

FEDERAL BUREAU OF INVESTIGATION.

No. 83-1151.

United States Court of Appeals, District of Columbia Circuit

June 26, 1984

Argued March 16, 1984.

As Amended .

Page 1174

[Copyrighted Material Omitted]

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Appeal from the United States District Court for the District of Columbia (Civil Action No. 81-01038).

Aljoe Poindexter was on the brief, pro se.

Susan Siegal, Washington, D.C., with whom Steven H. Goldblatt, Washington, D.C., appointed by this Court, and Norman A. Townsend, Alexandria, Va., were on the brief as amicus curiae urging remand to the District Court for a new trial.

Diane M. Kozub, South Orange, N.J., of the Bar of the Supreme Court of New Jersey, pro hac vice by special leave of the Court, with whom Joseph E. diGenova, U.S. Atty., Royce C. Lamberth, R. Craig Lawrence and Michael J. Ryan, Asst. U.S. Attys., Washington, D.C., were on the brief, for appellee. Robert C. Seldon, Asst. U.S. Atty., Washington, D.C., also entered an appearance for appellee.

Before EDWARDS and SCALIA, Circuit Judges, and SWYGERT, [*] Senior Circuit Judge for the United States Court of Appeals for the Seventh Circuit.

Opinion for the Court filed by Circuit Judge HARRY T. EDWARDS.

Opinion concurring in part and dissenting in part filed by Circuit Judge SCALIA.

HARRY T. EDWARDS, Circuit Judge:

This appeal arises from a judgment of the District Court in favor of the defendant in an employment discrimination action brought and prosecuted pro se by appellant Aljoe Poindexter. The appellant's argument for reversal has been supplemented by the briefing and oral argument of counsel from the Appellate Litigation Clinic of Georgetown University Law Center, appearing as amicus curiae on appeal. The appellant and amicus curiae argue that the District Court erred in failing to grant the appellant's request for appointment of counsel. Because we cannot discern from this record whether counsel should have been appointed for the appellant we reverse and remand for further proceedings.

BACKGROUND

The appellant, a Black male, was hired by the appellee, the Federal Bureau of Investigation ("FBI"), in 1974. On February 27, 1977, he was promoted to a GS-6 position as a coding clerk or "reader" in the Automation and Research Section, Identification Division of the FBI. His primary responsibility in this position was to review reports coded by other personnel to insure their accuracy.

The undisputed facts indicate that the appellant's work record in the Automation and Research Section was at best adequate. In each of four annual evaluations between October 1976 and September 1980, the appellant's performance was rated "satisfactory." Joint Stipulation of Material Facts No Longer in Dispute ("Joint Stipulation") at 1-3, reprinted in Amicus Curiae Appendix ("App."), at 74-76. During this period, the appellant received a number of "unsatisfactory" monthly ratings and was censured on two occasions for having an excessive number of such ratings during a twelve-month period. Id. 1

On February 27, 1980, the appellant filed a formal Equal Employment Opportunity complaint with the Department of Justice, alleging that the FBI discriminated against Black GS-6 coding clerks in assignments and promotions. The record does not indicate the disposition of this complaint. 2

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The undisputed facts also indicate that during his six years of employment with the FBI prior to the filing of his administrative complaint, the appellant had never been absent without leave or suspended. Joint Stipulation at 4, App. 77. However, on April 14, 1980--less than two months after filing the administrative complaint--he was charged with fifteen minutes of unauthorized absence without leave ("AWOL") on April 9 for being in the appellee's cafeteria when he was due at his work station. Id. at 2, App. 75. On September 26, 1980, the appellant was charged with 30 minutes AWOL on September 12, 1980 for leaving work early. Id. On January 22, 1981, the appellant was "censured, placed on probation for 60 days, and suspended for three days pursuant to his third AWOL within a twelve-month period." Id. at 3, App. 76.

The appellant filed a second administrative complaint on February 6, 1981, alleging acts of reprisal by the FBI following the filing of the first complaint. The administrative disposition of this claim also does not appear in the record.

On May 1, 1981, the appellant filed a complaint under Title VII of the Civil Rights Act of 1964, 42 U.S.C. Sec. 2000e to 2000e-17 (1976 & Supp. V 1981), charging the FBI with race and sex discrimination in making promotions, and acts of reprisal and harassment. On May 29, 1981, the Department of Justice notified the appellant of his right to apply for appointment of counsel pursuant to 42 U.S.C. Sec. 2000e-5(f)(1) (1976). The appellant apparently made this application in an unfiled letter to the court dated July 28, 1981. 3

As the only significant issue on appeal concerns the trial court's treatment of the appellant's motion for appointment of counsel, we will discuss the facts relevant to this issue at some length. In doing so, we are constrained by the incompleteness of the record. Although there is some indication that at one point the trial court did attempt to appoint counsel for the appellant, 4 the record does not indicate the basis for this appointment or even whether the appointment preceded or followed the appellant's motion. 5

The earliest transcribed record of the District Court proceeding is a September 17, 1981 status call. According to this record, the attorney "originally appointed" by the court had, at the time of his appointment, indicated his unwillingness to represent the appellant. Transcript of September 17, 1981 Status Call at 3 (Sept. 17, 1981), reprinted in App. 25. Following this attorney's withdrawal, the trial judge apparently attempted to find a new attorney to represent the appellant. These efforts were unsuccessful because several attorneys who had been contacted "indicated that they could not take a case without doing great hardship to their present schedules." Id. at 5, App. 27.

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The District Court judge then arranged the September 17 status call, and informed the appellant: "I have been unable to find anyone to represent you, and I wanted to call you in together with [the appellee's attorney] ... to suggest to you several routes." Id. at 3, App. 25. The court first suggested clinical programs and legal services, and then described options available if the appellant believed he could pay for counsel. Id. The following exchange then occurred:

THE COURT: I have asked several attorneys that I know who handle EEO cases, and all of them have indicated to me that their schedules or calendars are such that they cannot take on another case. So that's where I stand in my efforts to try to find someone to represent you.

So I will be happy to hear anything you might wish to suggest.

Do you believe that you can afford to pay counsel?

MR. POINDEXTER: I think I could manage, providing I can keep my job.

THE COURT: Well, of course, that's something the court cannot control.

MR. POINDEXTER: Oh, I see.

THE COURT: You see, I can't control that. Certainly not today I can't control it. You apparently indicated to one of my clerks that you have attempted to get counsel too, but have been unsuccessful.

MR. POINDEXTER: Right.

THE COURT: Would you mind--you don't have to--but would you mind stating why you have been unable to? Has it been financial?

MR. POINDEXTER: No, Ma'am.

THE COURT: It has not been financial?

MR. POINDEXTER: No. I have had, including the attorney that was here last time we was here, he is the third, the one to refuse materials I have, and said he didn't want to mess with it.

Id. at 4-5, App. 26-27. Following this discussion, the court outlined at great length the steps the appellant might take to secure counsel. At the conclusion of the status call the District Court judge explained to the appellant:

.. I have, as I said, done my very best, and those lawyers that you know have all said that their schedules just don't permit, just won't permit.

This is the type of case that requires a lot of work, and a lot of time, and concentrated effort, and I can understand if an attorney says, "well, my calendar is just too full for me to take something at this time."

That's what has happened in this regard ....

.. At any rate, those are the only things I can suggest to you at this time, Mr. Poindexter, and I hope you will be successful.

Id. at 12-13, App. 34-35.

The appellant did tell the court that he could afford counsel, but only providing that he could keep his job. This qualification is significant because, at the time of the September 17 hearing, there was substantial reason to believe that the appellant's future in his job was precarious. In a motion two months earlier to enjoin the appellee from taking administrative action against him, the appellant warned the court that he was being subjected to acts of reprisal and claimed that recent events suggested that he might be dismissed. Plaintiff's Motion For Temporary Restraining Order and Preliminary Injunction (July 8, 1981). In a motion submitted the day before the September 17 status call, the appellant informed the court that he was in the process of being dismissed. Plaintiff's Motion For Temporary Restraining Order and Preliminary Injunction at 2 (Sept. 16, 1981), reprinted in App. 89. This latter motion was discussed at the September 17 status call, at which time the appellee's counsel told the court that "the agency has recommended that [the appellant] be dismissed." Transcript of...

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