Caston v. Sears, Roebuck & Co., No. 75-3925
| Court | United States Courts of Appeals. United States Court of Appeals (5th Circuit) |
| Writing for the Court | Before GEWIN, RONEY and HILL; JAMES C. HILL |
| Citation | 556 F.2d 1305 |
| Docket Number | No. 75-3925 |
| Decision Date | 05 August 1977 |
| Parties | 15 Fair Empl.Prac.Cas. 1787, 14 Empl. Prac. Dec. P 7776 Fulton CASTON, Plaintiff-Appellant, v. SEARS, ROEBUCK AND COMPANY, HATTIESBURG, MISSISSIPPI, Defendant-Appellee. |
Page 1305
Dec. P 7776
v.
SEARS, ROEBUCK AND COMPANY, HATTIESBURG, MISSISSIPPI,
Defendant-Appellee.
Fifth Circuit.
Page 1306
Ronald R. Welch, Frank R. Parker, Jackson, Miss., Melvyn R. Leventhal, Jack Greenberg, Eric Schnapper, Legal Defense Fund, New York City, for plaintiff-appellant.
Marleigh Dover Lang, EEOC, Washington, D. C., amicus curiae.
Dean Charles Houk, Jr., Sears, Roebuck & Co., Sidney O. Smith, Jr., Franklin R. Nix, Atlanta, Ga., for defendant-appellee.
Appeal from the United States District Court for the Southern District of Mississippi.
Before GEWIN, RONEY and HILL, Circuit Judges.
JAMES C. HILL, Circuit Judge:
This case concerns the appointment of counsel under Section 706(f) of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C.A. § 2000e-5(f)(1) (Title VII). On January 28, 1974, plaintiff, Fulton Caston, a Negro, was discharged by defendant, Sears, Roebuck and Company. On January 30, 1974, plaintiff filed a timely charge of racial discrimination with the Equal Employment Opportunity Commission (EEOC).
The EEOC investigated the charge and on May 29, 1975, issued a decision which found that there was no reasonable cause to believe that plaintiff was discharged because of his race or was treated any differently from whites under the same or similar circumstances. Plaintiff was informed that this determination of no reasonable cause concluded the EEOC's processing of his charge. The EEOC determination letter further informed plaintiff that if he wished to pursue the matter further he could file a private action in Federal District Court within 90 days of his receipt of the determination letter "by taking the other procedural steps set out in the enclosed Notice of Right to Sue."
The Notice of Right to Sue provided:
Pursuant to Section 706(f) of Title VII of the Civil Rights Act of 1964, you are hereby notified that you may, within ninety (90) days of receipt of this letter, institute a civil action in the appropriate Federal District Court. If you are unable to retain an attorney, the Federal District Court is authorized in its discretion to appoint an attorney to represent you and to authorize commencement of the suit without payment of fees, cost or security. If you decide to institute suit and find you need assistance, you may take this letter, along with any correspondence you have received from the Commission, to the Clerk of the Federal District Court nearest to the place where the alleged discrimination occurred, and request that a Federal District Judge appoint counsel to represent you. Should you decide to sue, please have your attorney notify the Counsel of this office.
On August 18, 1975, plaintiff appeared in the Federal District Court in Hattiesburg, Mississippi, and was allowed to file the EEOC determination letter and the Notice of Right to Sue. Evidently, plaintiff orally represented to the Clerk that he desired to have an attorney appointed for him by the
Page 1307
district court. 1 On this same day the Clerk forwarded plaintiff's filings to the district judge's office.On September 3, 1975, plaintiff was cited to appear before the United States District Court at 9:00 a. m. on Monday, September 15, 1975, "to show cause why you should be permitted to sue Sears, Roebuck and Company without payment of costs and why you are entitled to have an Attorney appointed to represent you in such case; failing in which your applications therefor will be dismissed." Plaintiff was served with this citation on September 5, 1975. Sears, Roebuck and Company, the nominal defendant, was not made aware of the proceedings at this time. 2
Plaintiff appeared before the district court on September 15, 1975, and, apparently, plaintiff's application for the appointment of counsel was discussed. During the course of this unreported colloquy plaintiff's application was denied and as a result of remarks there made, but not here pertinent, plaintiff was adjudged in contempt of court. 3 The district court's written order of September 17, 1975, recited that "the Court having heard and considered oral and documentary proof, including determination letter from the Equal Employment Opportunity Commission, and the Court being fully advised in the premises, concludes that the Court should not appoint an attorney to represent Fulton Caston." Plaintiff was given 10 days within which to employ an attorney. This appeal followed.
The first issue with which we are faced is a rather delicate procedural one. The question is whether a district court's refusal to appoint counsel pursuant to Section 706(f) of Title VII is appealable. Resolution of this issue is complicated by the hazy procedural record developed in the district court.
For this reason we think that it is appropriate to establish some guidelines which should be followed in actions filed under Section 706 of Title VII. Section 706(f) authorizes a federal district court to appoint an attorney to represent a civil rights plaintiff and to permit commencement of the suit without the payment of fees, costs or security. Once a potential plaintiff is informed of this authority which resides in the federal district court, he has several alternatives. First, he may pay the filing fee and prosecute the action pro se. Second, he may pay the filing fee and retain an attorney to prosecute his case. Third, he may pay the filing fee and request that the court appoint him an attorney. Fourth, he may request that he be permitted to file suit without the payment of a filing fee and prosecute his case pro se. Fifth, he may request that he be allowed to commence his suit without the payment of a filing fee and retain an attorney (probably on a contingent basis). Finally, he may request that he be allowed to commence his suit without the payment of a filing fee and request that the court appoint him an attorney.
The law in this circuit is clear that an order denying an application to proceed in forma pauperis is appealable as a final decision. Flowers v. Turbine Support Division, 507 F.2d 1242 (5th Cir. 1975). Thus, in those instances where a potential plaintiff requests that he be allowed to commence his suit without the payment of a filing fee
Page 1308
pursuant to Section 706(f) of Title VII, we are persuaded that an appeal would lie to this court under 28 U.S.C.A. § 1291.An...
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...be deferred until the whole case is adjudicated." Id. at 546, 69 S.Ct. at 1225. In Caston v. Sears, Roebuck & Co., Hattiesburg, Miss., 556 F.2d 1305 (5th Cir.1977), this Court concluded with "little hesitation" that a plaintiff who was allowed to file a Title VII suit in forma pauperis but ......
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Gordon v. Wilson, Nos. 81-1767
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