Gordon v. Wilson, Nos. 81-1767

CourtUnited States Courts of Appeals. United States Court of Appeals (6th Circuit)
Writing for the CourtBefore EDWARDS and KRUPANSKY, Circuit Judges, and BROWN; GEORGE CLIFTON EDWARDS, Jr.; Reinhardt's; BAILEY BROWN
Citation739 F.2d 1109
Decision Date20 July 1984
Docket Number81-5878 and 82-5009,Nos. 81-1767,81-5827
Parties35 Fair Empl.Prac.Cas. 480, 35 Empl. Prac. Dec. P 34,636 Artell M. HENRY, (81-1767) Plaintiff-Appellant, v. CITY OF DETROIT MANPOWER DEPARTMENT, Defendant-Appellee. Douglas L. GORDON, (81-5827) Plaintiff-Appellant, v. George WILSON, Al Parke, Dr. Hodge, Defendants-Appellees. Norman E. COX, (81-5878) Plaintiff-Appellant, v. UNION CARBIDE CORPORATION, Defendant-Appellee. Ronny Lee PARRISH, (82-5009) Plaintiff-Appellant, v. John O. MARSH, Jr., Secretary of the Army, Defendant-Appellee.

Page 1109

739 F.2d 1109
35 Fair Empl.Prac.Cas. 480,
35 Empl. Prac. Dec. P 34,636
Artell M. HENRY, (81-1767) Plaintiff-Appellant,
v.
CITY OF DETROIT MANPOWER DEPARTMENT, Defendant-Appellee.
Douglas L. GORDON, (81-5827) Plaintiff-Appellant,
v.
George WILSON, Al Parke, Dr. Hodge, Defendants-Appellees.
Norman E. COX, (81-5878) Plaintiff-Appellant,
v.
UNION CARBIDE CORPORATION, Defendant-Appellee.
Ronny Lee PARRISH, (82-5009) Plaintiff-Appellant,
v.
John O. MARSH, Jr., Secretary of the Army, Defendant-Appellee.
Nos. 81-1767, 81-5827, 81-5878 and 82-5009.
United States Court of Appeals,
Sixth Circuit.
Argued May 25, 1983.
Decided July 20, 1984.

Page 1110

John Gleeson (argued), Cravath, Swaine & Moore, New York City, for all plaintiffs-appellants.

Douglas L. Gordon, Norman E. Cox and Ronny Lee Parrish, pro se.

George Matish, Kenneth G. King, Frank W. Jackson, Catherine C. McLaughlin (argued), Detroit, Mich., for City of Detroit Manpower Dept.

Barbara W. Jones, Dept. of Corrections, Linda G. Cooper (argued), Frankfort, Ky., for George Wilson, Al Parke and Dr. Hodge.

E.H. Rayson (argued), Kramer, Johnson, Rayson, Knoxville, Tenn., G. Wilson Horde, Oak Ridge, Tenn., for Union Carbide Corp.

John S. Albanese, HODA, DAJA-LTC, Peter Loewenberg (argued), Washington, D.C., Alexander T. Taft, Jr., David T. Gray, Asst. U.S. Atty., Louisville, Ky., for John O. Marsh, Jr.

Page 1111

Before EDWARDS and KRUPANSKY, Circuit Judges, and BROWN, Senior circuit judge.

GEORGE CLIFTON EDWARDS, Jr., Circuit Judge.

The plaintiffs in these civil rights actions appeal from denial by four different District Courts of their motions for appointment of counsel. The immediately controlling issue in each case is whether or not denial of counsel is an appealable final order. The four cases have been consolidated for appellate decision.

Each of these cases is entirely separate and distinct. None has been the subject of trial on the merits in the District Court. In one of them, the District Judge did attempt to comply with the purposes of the federal equal employment opportunity statutes involved by making two appointments of counsel and seeking to make another. We cannot appropriately, however, decide whether dismissal of even this complaint is appropriate without first deciding whether or not these appeals are viable.

In another case, Parrish v. Marsh, the District Judge made a genuine effort to ascertain whether Parrish's claim had merit. The problem with failure to appoint counsel, no matter how carefully the District Judge sought to handle the matter without appointing counsel, is probably illustrated best in Parrish in the context of a claim of racial discrimination where appellant's ultimate rights may have been seriously and adversely affected by lack of a lawyer for purposes of investigation, organization of evidence and filing of an adequate complaint. Of course it is likewise possible that at trial, even with legal representation, each of these cases could prove to be frivolous. The point is that without at least the investigation by competent counsel, no one will ever know the answer to that question.

We hold that all four of these cases are appealable.

Each of these cases was filed under one of the following statutes where Congress specifically recognized the need for legal representation: Title VII of the Civil Rights Act of 1964, Sec. 706(f)(1)(B), 42 U.S.C. Sec. 2000e-5(f)(1)(B) (1976), provides:

Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.

Title 28 U.S.C. Sec. 1915(d) provides:

The court may request an attorney to represent any such person 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.

In the Civil Rights Act, Congress clearly recognized 1) that many civil rights grievants would be likely to be indigent and "unable to employ counsel," and 2) that the very nature of the litigation authorized was likely to be complex so as to require counsel for preparation and presentation in court. Congress also demonstrated its concern by waiving payment of fees, costs and security. (Congress however, did not provide for payment of legal fees but apparently thought it appropriate for members of the bar to handle these cases through pro bono service after appointment by federal courts.) It did provide for federal courts to award fees to a prevailing party. See 42 U.S.C. Sec. 2000e-5(k).

This Court now holds that a citizen seeking to file a civil rights complaint has a right of appeal from a denial of appointment of counsel because of 1) the concerns expressed in the legislative history of the Civil Rights Act; 2) applicable Supreme Court case law; 3) precedent in the majority of the circuits which have spoken on the issue and 4) the closest applicable case law in this circuit.

I. Legislative History

Congress has indicated its understanding of the difficulties faced by civil rights litigants.

Page 1112

It is important to note that subsection 715(a) in the bill provides that where the individual has elected to pursue his action in the court, the court may, in such circumstances as it deems just, appoint an attorney for the complainant and authorize the commencement of the action without the payment of fees, costs or security. By including this provision in the bill, the committee emphasizes that the nature of Title VII actions more often than not pits parties of unequal strength and resources against each other. The complainant, who is usually a member of a disadvantaged class, is opposed by an employer who not infrequently is one of the nation's major producers, and who has at his disposal a vast array of resources and legal talent.

* * *

* * *

The complexity of many of the charges, and the time required to develop the cases, is well recognized by the committee. It is assumed that individual complainants, who are apprised of the need for the proper preparation of a complex complaint involving multiple issues and extensive discovery procedures, would not cut short the administrative process merely to encounter the same kind of delays in a court proceeding. It would, however, be appropriate for the individual to institute a court action where the delay is occasioned by administrative inefficiencies. The primary concern must be protection of the aggrieved person's option to seek a prompt remedy in the best manner available.

H.R.Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972 U.S.Code Cong. & Ad.News, 2137, 2148 (emphasis added).

As indicated above, the 1964 Civil Rights Act, 42 U.S.C. Sec. 2000e-5(f)(1)(B) provides:

Upon application by the complainant and in such circumstances as the court may deem just, the court may appoint an attorney for such complainant and may authorize the commencement of the action without the payment of fees, costs, or security.

This provision resembles 28 U.S.C. Sec. 1915(d) enacted in 1892 for plaintiffs proceeding in forma pauperis in civil actions: "The court may request an attorney to represent any such person unable to employ counsel."

Prior to 1972 the EEOC had only conciliation powers in obtaining compliance with Title VII of the 1964 Civil Rights Act. Congress significantly strengthened the enforcement powers of the EEOC in 1972 because of dissatisfaction with implementation of Title VII. While empowering the EEOC to initiate litigation on behalf of Title VII complainants, the 1972 Amendments also re-enacted the provisions authorizing private individuals to initiate their own civil actions. House Report No. 92-238 on the Equal Employment Opportunity Act of 1972 explains the importance of re-enacting the 1964 language on court appointed counsel. Because of EEOC staff shortages, parties had had to wait up to three years for final conciliation procedures to be instituted.

This situation leads the committee to believe that the private right of action, both under the present act and in the bill, provides the aggrieved party a means by which he may be able to escape from the administrative quagmire which occasionally surrounds a case caught in an overloaded administrative process.

1972 U.S.Code Cong. & Ad.News, 2137, 2147-48.

As previously pointed out, Congress recognized that a civil rights "complainant who is usually a member of a disadvantaged class, is opposed by an employer who not infrequently is one of the nation's major producers, and who has at his disposal a vast array of resources and legal talent."

This imbalance in civil rights litigation is at the center of the right to counsel issue because it illustrates the futility (probably impossibility) of a civil rights plaintiff who is unable to hire counsel proceeding pro se after rejection of such a motion for appointment of counsel. As Congress recognized,

Page 1113

rejecting such a motion means that the final curtain drops before the play begins.

II. Supreme Court Precedent

We turn now to Supreme Court precedent which establishes guidelines on the issue of when an order is "final" for purposes of immediate appealability under 28 U.S.C. Sec. 1291. In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the Supreme Court defined the circumstances under which appeals may be taken before ultimate decision by the District Court. The appeal involved a district court's refusal to apply a state statute requiring a plaintiff in a shareholder's derivative action to post security for costs.

At the threshold we are met with the question whether the District Court's order refusing to apply the statute was an appealable one. Title 28 U.S.C. Sec. 1291 provides, as did its predecessors, for appeal only, "from all final decisions of the district courts," except when direct appeal to this Court is...

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15 practice notes
  • Henry v. City of Detroit Manpower Dept., Nos. 81-1767
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 22, 1985
    ...The court having voted to consider and having considered this cause en banc, the prior opinion and decision of this court reported at 739 F.2d 1109 (6th Cir.1984) is These four appeals present a common threshold issue, never before decided by this court, whether the orders of the district c......
  • Lavado v. Keohane, No. 91-6442
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 22, 1993
    ...to 28 U.S.C. § 1915(d) is not appropriate when a pro se litigant's claims are frivolous, Henry v. City of Detroit Manpower Department, 739 F.2d 1109, 1119 (6th Cir.1984), or when the chances of success are extremely slim. Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983); McKeever v. Is......
  • Robbins v. Maggio, Nos. 83-3240
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 14, 1985
    ...on that issue. 741 F.2d at 25. A contrary position was taken by the Sixth Circuit in Henry v. City of Detroit Manpower Department, 739 F.2d 1109 (6th Cir.1984). However, the Henry opinion regarded Flanagan as being confined to criminal cases, id. at 1116, and hence felt free to rely on prio......
  • Colbert v. Rickmon, Civ. No. 89-2192.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • August 6, 1990
    ...held such orders not appealable. See Henry v. City of Detroit Manpower Dept., 763 F.2d 757 (6th Cir.) (en banc), vacating Henry v. City, 739 F.2d 1109 (6th Cir.1984); Smith-Bey v. Petsock, 741 F.2d 22 (3rd Cir.1984); Appleby v. Meachum, 696 F.2d 145 (1st Cir.1983); Randle v. Victor Welding,......
  • Request a trial to view additional results
15 cases
  • Henry v. City of Detroit Manpower Dept., Nos. 81-1767
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • May 22, 1985
    ...The court having voted to consider and having considered this cause en banc, the prior opinion and decision of this court reported at 739 F.2d 1109 (6th Cir.1984) is These four appeals present a common threshold issue, never before decided by this court, whether the orders of the district c......
  • Lavado v. Keohane, No. 91-6442
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • April 22, 1993
    ...to 28 U.S.C. § 1915(d) is not appropriate when a pro se litigant's claims are frivolous, Henry v. City of Detroit Manpower Department, 739 F.2d 1109, 1119 (6th Cir.1984), or when the chances of success are extremely slim. Childs v. Duckworth, 705 F.2d 915, 922 (7th Cir.1983); McKeever v. Is......
  • Robbins v. Maggio, Nos. 83-3240
    • United States
    • United States Courts of Appeals. United States Court of Appeals (5th Circuit)
    • January 14, 1985
    ...on that issue. 741 F.2d at 25. A contrary position was taken by the Sixth Circuit in Henry v. City of Detroit Manpower Department, 739 F.2d 1109 (6th Cir.1984). However, the Henry opinion regarded Flanagan as being confined to criminal cases, id. at 1116, and hence felt free to rely on prio......
  • Colbert v. Rickmon, Civ. No. 89-2192.
    • United States
    • United States District Courts. 8th Circuit. Western District of Arkansas
    • August 6, 1990
    ...held such orders not appealable. See Henry v. City of Detroit Manpower Dept., 763 F.2d 757 (6th Cir.) (en banc), vacating Henry v. City, 739 F.2d 1109 (6th Cir.1984); Smith-Bey v. Petsock, 741 F.2d 22 (3rd Cir.1984); Appleby v. Meachum, 696 F.2d 145 (1st Cir.1983); Randle v. Victor Welding,......
  • Request a trial to view additional results

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