795 F.2d 796 (9th Cir. 1986), 84-3928, United States v. 30.64 Acres of Land, More or Less, Situated in Klickitat County, State of Wash.

Docket Nº:84-3928.
Citation:795 F.2d 796
Party 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.
Case Date:July 28, 1986
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit

Page 796

795 F.2d 796 (9th Cir. 1986)

UNITED STATES of America, Plaintiff-Appellee,





James Starr, Defendant-Appellant.

No. 84-3928.

United States Court of Appeals, Ninth Circuit

July 28, 1986

Argued and Submitted Jan. 8, 1986.

Page 797

Arthur E. Gowran, Jacques B. Gelin, Washington, D.C., for plaintiff-appellee.

Susan L. Hahn, Schwab, Jurtz & Hurley, Yakima, Wash., for defendant-appellant.

Appeal from the United States District Court for the Eastern District of Washington.

Before WRIGHT, CANBY and WIGGINS, Circuit Judges.

WIGGINS, Circuit Judge:

Appellant James Starr appeals from a jury verdict awarding him $3676.80 in compensation for the condemnation of some 30.64 acres of his 215-acre tract at the mouth of the Klickitat river above the Bonneville Dam. Because we conclude that the district court committed errors of law in denying his motion for counsel and in failing to consider the propriety of appointing a guardian ad litem, we reverse and remand.


The United States filed a complaint against Starr on November 26, 1974, to establish just compensation for 30.64 acres of Starr's land taken by the government as added flowage easement for the Bonneville Dam. Although represented by counsel at times during the pendency of the action, Starr appeared pro se at the first trial in 1981. The jury awarded him $22,240.00, the government appealed, and this court overturned the award as unsupported by the evidence and remanded for a new trial. United States v. 30.64 Acres of Land, 707 F.2d 520 (9th Cir.1983) (mem.).

Before the new trial, Starr, again pro se, moved for appointment of counsel on the ground that he was "incapable of protecting himself in the forthcoming Trial [sic]." Attached to Starr's motion was a detailed Social Security Administration (SSA) report

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finding him totally physically and mentally disabled under SSA regulations.

The government's response to Starr's motion noted that the court had the authority to appoint counsel, both under 28 U.S.C. Sec. 1915 and by virtue of its general power to insure the administration of justice. The government noted that Starr had not filed the affidavit of indigency required by section 1915 and suggested that the court point out to him the requirements of the section to allow him to do so.

The government also acknowledged the SSA report finding Starr totally mentally disabled and suggested to the court that this condition might require it to appoint a guardian ad litem for Starr under Fed.R.Civ.P. 17(c). The government advised the court that in the government's opinion appointment of a guardian ad litem was within the court's discretion, and that in view of the preliminary showing, the court should inquire into Starr's condition.

The court did not inform Starr of the requirements of section 1915 for appointment of counsel or inquire in any way into Starr's mental competence. It denied the motion for appointment of counsel without explanation. Starr renewed his motion both before and during the trial. In the latter instance, the court commented, "I know nothing in this case that allows this Court to appoint an appraiser or an attorney for you, and that's the problem." The jury returned a verdict of $3676.80 for Starr. Judgment was entered, and Starr timely appealed, now represented by counsel.


This is an appeal from a final judgment in a United States district court, properly before this court under 28 U.S.C. Sec. 1291 (1982). Although the notice of appeal was filed June 20, 1984 and judgment on the verdict was not entered until September 6, 1984, the notice of appeal followed the announcement of the decision in the case (the May 1 verdict) and so is timely under Fed.R.App.P. 4(a)(2).



  1. Standard of Review

    Designation of counsel under 28 U.S.C. Sec. 1915(d) is ordinarily at the discretion of the trial court and can only be overturned for abuse of that discretion. See United States ex rel. Gardner v. Madden, 352 F.2d 792, 793 (9th Cir.1965). Appellant here argues, however, that the district court based its denial on its erroneous belief that it lacked the statutory power to grant the motion. This alleges an error of law, reviewable de novo by this court. See United States v. McConney, 728 F.2d 1195, 1201 (9th Cir.) (en banc), cert. denied, --- U.S. ----, 105 S.Ct. 101, 83 L.Ed.2d 46 (1984).

  2. Motion for Representation by Counsel

    Starr argues that the trial court denied his motion for appointment of counsel on the mistaken ground that the court lacked authority to grant it. He argues that the court's comment, "I know nothing in this case that allows this Court to appoint an appraiser or an attorney for you, and that's the problem," shows that the court thought it lacked the power to secure counsel for him.

    Such a conclusion by the court suggests that it misconceived its authority. A district court has the power to secure counsel for indigent plaintiffs under 28 U.S.C. Sec. 1915(d) (1982), which provides:

    The court may request an attorney to represent any such person [proceeding in forma pauperis] unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

    This provision clearly gives courts the power to secure counsel for indigent civil litigants, but the nature of the power has been treated differently by different courts. Some courts have taken the language of the statute at its word and held that courts may request but not compel

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    representation of indigents in civil cases. 1 Other courts have read the statute more broadly and have apparently required attorneys to represent indigents without compensation. 2 Some courts use the term "appointment" casually and affirm or reverse trial court denials of section 1915(d) motions without considering the distinction between a request and an appointment. 3 Still other courts use the terms "request" and "appoint" interchangeably, ignoring any distinction between them. 4

    Several factors account for this confusion. Most obviously, federal courts are in the habit of using the language of mandatory appointment of counsel. Because the overwhelming majority of motions for counsel in federal courts properly request "appointment" of counsel, 5 courts naturally fall into using "appointment" language without considering whether it is appropriate.

    The rarity of a successful section 1915(d) motion also contributes to the confusion. A district court will secure counsel for an indigent civil litigant under section 1915(d) only under "exceptional circumstances," see, e.g., Aldabe v. Aldabe, 616 F.2d 1089,

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    1093 (9th Cir.1980), so grants of such a motion are relatively rare. In addition, the district court is given considerable discretion in determining whether counsel is necessary, so appellate reversal of trial court denials is also rare. As a result, courts at both levels often have little incentive to choose their language carefully in ruling on section 1915(d) motions; it little matters to a litigant who is denied counsel whether the court declines to "appoint" an attorney or merely declines to "request" an attorney to serve.

    Finally, some of the confusion undoubtedly arises because courts use the word "appoint" in two different senses. As it is used in this opinion, "to appoint" means to order an attorney to represent an indigent client, whether with or without compensation. Many courts, however, including our own, also use the word "appoint" to designate a pro bono volunteer attorney as counsel of record for an indigent client. Thus, courts often issue orders "appointing" counsel when the attorney has in fact volunteered to serve or been requested to serve by the court and agreed to do so. Courts are often aware of local attorneys willing to take on pro bono cases and use such orders to put the attorney-client relationship on a more formal footing. 6

    The difference between requesting counsel to serve and appointing counsel to serve is significant. As the terms are commonly understood, an attorney may decline a request but not an appointment. 7 See, e.g., Powell v. Alabama, 287 U.S. 45, 73, 53 S.Ct. 55, 65, 77 L.Ed. 158 (1932). Where no provision is made for government payment of appointed attorneys, therefore, "appointment" has the potential of working hardship on attorneys. This is especially so because the cases justifying representation under section 1915(d) by their nature involve "exceptional circumstances," see, e.g., Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986); Aldabe, 616 F.2d at 1093; Gardner, 352 F.2d at 794, 8 that often require exceptional amounts of time and attention from attorneys.

    Courts have long recognized that attorneys, because of their profession, owe some duty to the court and to the public to serve without compensation when called on.

    [T]he obligation of the legal profession to serve indigents on court order is an ancient and established tradition, and ... appointed counsel have generally been compensated, if at all, only by statutory fees which would be inadequate under just compensation principles, and which are usually payable only in limited types of cases.

    United States v. Dillon, 346 F.2d 633, 635 (9th Cir.1965), cert. denied, 382 U.S. 978,

    Page 801

    86 S.Ct. 550, 15 L.Ed.2d 469 (1966); see Peterson v. Nadler, 452 F.2d 754, 758 (8th Cir.1971). This duty of public service is a condition of practicing law, and constitutes neither a taking under the fifth amendment, id. at 635-36; accord Dolan v. United States, 351 F.2d 671, 672 (5th Cir.1965); see also...

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