Bradshaw v. United States District Court for Southern District

742 F.2d 515, 35 Fair Empl. Prac. Cas. (BNA) 1297, 1984 U.S. App. LEXIS 18826, 35 Empl. Prac. Dec. (CCH) 34,623
CourtCourt of Appeals for the Ninth Circuit
DecidedSeptember 7, 1984
DocketNo. 83-7247
StatusPublished
Cited by1 cases

This text of 742 F.2d 515 (Bradshaw v. United States District Court for Southern District) is published on Counsel Stack Legal Research, covering Court of Appeals for the Ninth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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Bradshaw v. United States District Court for Southern District, 742 F.2d 515, 35 Fair Empl. Prac. Cas. (BNA) 1297, 1984 U.S. App. LEXIS 18826, 35 Empl. Prac. Dec. (CCH) 34,623 (9th Cir. 1984).

Opinions

SKOPIL, Circuit Judge:

Appellant Nancy Bradshaw petitions this court for a writ of mandamus compelling [516]*516the district court to appoint counsel to represent her in her Title VII action against the San Diego Zoological Society (“Zoo”). We decline to issue the writ.

FACTS AND PROCEEDINGS BELOW

Bradshaw filed a pro se sex discrimination action against the Zoo in 1975. The district court granted summary judgment in favor of the Zoo and Bradshaw appealed. This court reversed and remanded for further proceedings. See Bradshaw v. Zoological Society of San Diego, 569 F.2d 1066 (9th Cir.1978) (“Bradshaw I”).

Bradshaw then filed a motion for appointment of counsel under 42 U.S.C. § 2000e-5(f)(l)(B) and for leave to proceed in forma pauperis in district court. The district court denied the motion for appointment of counsel and Bradshaw appealed. A majority held that Bradshaw was appealing from a collateral order and that she satisfied the criteria for appointment of counsel. See Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir. 1981) (“Bradshaw II”). The ease was remanded to the district court for appointment of counsel and proceedings on the merits.

On March 30, 1983 the district court entered findings of fact detailing its unsuccessful attempt to appoint counsel for Bradshaw. The district court’s order directs Bradshaw either to proceed pro se or to seek further relief from this court. On April 15, 1983 Bradshaw filed her petition for writ of mandamus with this court seeking to compel the district court to appoint counsel.

DISCUSSION

This ease highlights a defect in Title VII of the Civil Rights Act of 1964 (“Act”). That Act, at 42 U.S.C. § 2000e-5(f)(l)(B), authorizes the district court to appoint counsel “[u]pon application by the complainant and in such circumstances as the court may deem just____” Unfortunately, Congress has not been as generous in providing compensation for counsel as it has in authorizing court appointments. Congress has never created a fund for payment of court-appointed counsel in Title VII cases. This deficiency has contributed significantly to the district court’s difficulty in finding counsel willing to represent Bradshaw.

After the remand in Bradshaw II, the district court set about in search of counsel to fulfill the mandate of this court. The district court strove for over 13 months to find an attorney who would volunteer to represent. Bradshaw. Twenty private attorneys were contacted by either the court or Bradshaw at the court’s direction. In addition, help was solicited from the Federal Defenders of San Diego, Inc.; the Lawyers Club of San Diego; the Legal Aid Society of San Diego, Inc.; the San Diego County Bar Association and its Lawyer Reference Agency; the Southern District Lawyer Representatives to the Ninth Circuit Judicial Conference; the University of San Diego School of Law Legal Clinic; and the United States Attorney. No one would voluntarily assist in the prosecution of Bradshaw’s case.

The district court outlined in its findings of fact the reasons why counsel could not be located to voluntarily assist Bradshaw. Chief among the reasons given by attorneys and organizations contacted was the lack of compensation. Besides the obvious demand on attorney time for the adequate prosecution of a complex employment discrimination case, the costs of discovery were thought prohibitive. Anyone stepping forward would have been responsible to pay for substantial discovery and other costs. The only opportunity for recovery for time and out-of-pocket expenditures would be as a prevailing party under 42 U.S.C. § 2000e-5(k). Attorneys also expressed concern about jeopardizing their malpractice insurance coverage and defending against State Bar disciplinary proceedings. Furthermore, Bradshaw is apparently particularly litigious and is not reluctant to call into question the competency of attorneys who attempt to assist her.

When this case was last before us we discussed three factors which a district court must consider in exercising its discre[517]*517tionary power of appointment under 42 U.S.C. § 2000e-5(f)(l)(B).1 A majority held that the district court had abused its discretion because it had not considered one of the three essential factors and had been wrong as a matter of law in its evaluation of another of the three factors. Bradshaw II, 662 F.2d at 1318-20. The opinion carefully pointed out, however, that other factors besides the three specified might be relevant:

The three factors listed in the text are applicable in all cases. They are usually the only relevant factors. The record before us does not provide any basis for consideration of other factors in this case. We do not mean to suggest, however, that in other cases where the particular facts so warrant other similar factors may not be taken into account by the district courts, so long as they are treated in a manner consistent with the policy of the statutory provision.

Bradshaw II, 662 F.2d at 1318 n. 43 (emphasis added). We find that the record, as now supplemented by the additional findings of fact by the district court, reveals other factors that are properly taken into account.

The district court has not violated . the mandate in Bradshaw II. The opinion directed the district court to assist Bradshaw in locating counsel who would participate willingly, never supposing that the court would be unable to secure such assistance. The district court fairly exhausted the possibilities in the community where it is located. Based on the record before us in Bradshaw II, the majority fully expected on remand that willing counsel would be found and appointed. Based on the record as it now stands, we hold that it was not an abuse of discretion, and not a violation of our intent in Bradshaw II, for the district court not to make a coercive appointment of counsel.

We reach this conclusion for several reasons. Several of the attorneys contacted by the district court suggested that issues of involuntary servitude are raised by coercive appointment.2 Our purpose in recognizing that such issues were raised is to illustrate the degree of reluctance of members of the San Diego area bar to aid Ms. Bradshaw. When the degree of resistance is so high that attorneys would rather confront the court with questionable thirteenth amendment arguments than provide counsel for an indigent, the helpfulness of coercive appointment is subject to question. There is reason to doubt that an attorney appointed under such conditions would provide representation that would assist either the indigent or the court.

Were the lack of compensation the only reason for the bar’s recalcitrance, we would be far less inclined to accept the district court’s failure to make a coercive appointment.

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742 F.2d 515, 35 Fair Empl. Prac. Cas. (BNA) 1297, 1984 U.S. App. LEXIS 18826, 35 Empl. Prac. Dec. (CCH) 34,623, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bradshaw-v-united-states-district-court-for-southern-district-ca9-1984.