Nanez v. McHugh
Filing
23
ORDER DENYING WITHOUT PREJUDICE 19 Motion to Appoint Counsel. Signed by Judge David A. Ezra. (rg)
THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF TEXAS
SAN ANTONIO DIVISION
IRMA NANEZ,
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Plaintiff,
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vs.
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JOHN M. McHUGH, Secretary, United §
States Department of the Army,
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Defendant.
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NO. 5:15-CV-1074-DAE
ORDER DENYING PETITION FOR APPOINTMENT OF COUNSEL
Before the Court is Irma Nanez’s (“Plaintiff’s”) Petition for
Appointment of Counsel. (Dkt. # 19.) Pursuant to Local Rule 7(h), the Court finds
this matter appropriate for disposition without a hearing. For the reasons that
follow, the Court DENIES Nanez’s motion. (Dkt. # 19.)
BACKGROUND
Nanez’s motion arises out of her suit against Secretary of the Army
John McHugh (“Defendant” or “McHugh”), for alleged employment
discrimination on the basis of her race and national origin in violation of Title VII
of the Civil Rights Act of 1964, 42 U.S.C. § 2000e–16. (“Compl.,” Dkt. # 1
¶¶ 28–31.) Plaintiff exhausted her administrative remedies before the EEOC prior
to filing this suit. See EEOC Decision No. 451-2012-00180X.
Nanez filed this suit in the United States District Court for the District
of Columbia. (Compl.) On November 23, 2015, the United States District Court
for the District of Columbia granted Defendant’s motion to transfer the case to the
Western District of Texas. (Dkt. # 14.) Plaintiff did not appeal or otherwise
dispute the Court’s transfer order. The case was transferred to this Court on
December 4, 2015. (Dkt. # 15.) On January 7, 2016, Plaintiff filed the instant
Petition for Appointment of Counsel. (Dkt. # 19.)
LEGAL STANDARD
“Title VII authorizes district courts, upon application and ‘in such
circumstances as the court may deem just,’ to appoint counsel to represent Title
VII plaintiffs.” Neal v. IAM Local Lodge 2386, 722 F.2d 247, 250 (5th Cir. 1984)
(quoting 42 U.S.C. § 2000e-5(f)(1)). “There is no automatic right to appointment
of counsel,” and “the decision whether to appoint counsel rests within the sound
discretion of the trial court.” Gonzalez v. Carlin, 907 F.2d 573, 579 (5th Cir.
1990). District courts traditionally use the “exceptional circumstances” test when
determining whether to appoint counsel in a civil suit; however, there is a different
“standard for analyzing the need for appointed counsel in Title VII cases.” Id. at
580 (citing 42 U.S.C. § 2000e–5(f)(1)). Pursuant to this unique test, a district court
should evaluate: “(1) the merits of the plaintiff’s claims of discrimination; (2) the
efforts taken by the plaintiff to obtain counsel; and (3) the plaintiff’s financial
ability to retain counsel.” Gonzalez, 907 F.2d at 580 (citing Neal, 772 F.2d at
250). No one factor is dispositive in this inquiry. Id. While a plaintiff,
particularly one who is pro se, need not “be saddled with formalized [pleading]
requirements,” the plaintiff does bear “the burden of persuasion with regard to
[her] application.” Caston v. Sears, Roebuck & Co., Hattiesburg, Miss, 556 F.2d
1305, 1310 (5th Cir. 1977).
DISCUSSION
Plaintiff asks the Court to appoint an attorney to represent her because
she resides in Atlanta, Georgia and will face financial hardship if made to pay the
costs of travelling to San Antonio, in addition to the cost of retaining local
counsel. 1 (Dkt. # 19 at 1.)
A. Merits of Plaintiff’s Claims
When evaluating the merits of a plaintiff’s claim of discrimination for
purposes of appointing counsel, a court is permitted to consider the EEOC
determination. Caston, 556 F.2d at 1309 (“While a district court may not give
preclusive effect to the determination of the EEOC, we reject the notion that the
1
Plaintiff states that the Court’s transfer of venue (Dkt. # 14) is the cause of her
instant motion, because she had “family status in Washington D.C.” (Dkt. # 19 at
1.) The Court presumes Plaintiff means she was able to stay cost-free with
relatives in Washington D.C. during the course of litigation, while she is unable to
do so in San Antonio.
merits of the claim may not be considered in ruling upon an application for
counsel.”).
In the instant case, the EEOC found on appeal that the employment
decisions at issue were made without awareness of Plaintiff’s race or national
origin, and that Plaintiff’s employer was able to “articulate[ ] legitimate,
nondiscriminatory reasons” for the employment decisions at issue. EEOC
Decision No. 451-2012- (3), 3–4 (Jan. 31, 2014). Plaintiff’s complaint does not
allege additional facts explaining why this decision was incorrect. While the
EEOC decision does not indicate the outcome of the case before this Court, it does
weigh against the appointment of counsel in the instant analysis.
B. Efforts to Obtain Counsel
Plaintiff does not state that she has made any attempt to retain local
counsel on a contingency fee basis or on a modified fee scale and was not able to
do so, nor does she allege that she attempted to retain local counsel at all. (Dkt.
# 19.) Rather, she states that she does not believe she will be able to pay both legal
and travel costs associated with this lawsuit. (Id. at 1.) At this point, Plaintiff has
not demonstrated to the Court that she was unable to retain local counsel, and this
weighs against a determination to appoint counsel at this time.
C. Plaintiff’s Financial Ability to Retain Counsel
Plaintiff states that her only source of income is her retirement
pension. (Dkt. # 19 at 1.) However, Plaintiff has not submitted any detailed
information regarding her financial situation to the Court; without more, the Court
is left to surmise her financial position. Plaintiff retired from the United States
Government at the GS-14 level. (Compl. ¶¶ 11, 20, 26.) While not dispositive,
courts are less likely to appoint counsel to a plaintiff with a steady source of
income in a Title VII case. See Gonzalez, 907 F.2d at 580 (finding that plaintiff in
Title VII case with modest savings and a steady United States Postal Service
income “was in no worse financial straits than many litigants who seek an attorney
to take their case”). Without more detailed information regarding Plaintiff’s
financial situation, the court finds that this factor currently weighs against the
appointment of counsel.
CONCLUSION
At this time, Plaintiff has not demonstrated any of the factors
justifying appointment of counsel in a Title VII suit. Accordingly, the Court
DENIES WTHOUT PREJUDICE Ms. Nanez’s Petition for Appointment of
Counsel. (Dkt. # 19.)
IT IS SO ORDERED.
DATED: San Antonio, Texas, January 13, 2016.
_____________________________________
David Alan Ezra
Senior United States Distict Judge
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