Caston v. Sears, Roebuck and Co. Brief for Appellant

    ''{ A

IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-3925

FULTON CASTON,

Plaintiff-Appellant,
v.

SEARS, ROEBUCK AND CO., etc.,

Defendant-Appellee.

On Appeal From The United States District Court 
For The southern District of Mississippi

BRIEF FOR APPELLANT

JACK GREENBERG 
MELVYN LEVENTHAL 
ERIC SCHNAPPER 
Suite 2030 
10 Columbus Circle 
New York, New York 10019

RONALD REID WELCH 
FRANK R. PARKER

233 North Farish Street 
Jackson, Mississippi 39201



IN THE
UNITED STATES COURT OF APPEALS 

FOR THE FIFTH CIRCUIT

No. 75-3 92 5

FULTON CASTON,

Plaintiff-Appellant,
v.

SEARS, ROEBUCK AND CO., etc.,

Defendant-Appellee.

On Appeal From The United States District Court 
For The Southern District of Mississippi

CERTIFICATE REQUIRED BY 
FIFTH CIRCUIT LOCAL RULE 12(a)

The undersigned, counsel of record for Plaintiff- 
Appellant, certifies that the following listed parties have 
an interest in the outcome of this case. This representa­
tion is made in order that Judges of this Court may evaluate
possible disqualification or recusal pursuant to Local Rule 
12(a) .

1. Fulton Caston
Sears, Roebuck and Company

Attorney of Record For Plaintiff- 
Appellant

2 .



TABLE OF CONTENTS

Statement of Issues Presented For Review
Statutory Provisions Involved .........
Statement of the C a s e.................

ARGUMENT
I. The District Court's Order Denying

Appointed Counsel Is Appealable ...
II. The District Court Erred In Denying

Appointed Counsel ................
III. Procedure On Remand ................ .

CONCLUSION



TABLE OF AUTHORITIES

Cases:
Adkins v. duPont Co.f 315 U.S. 331 (1948) ..........  15
Albemarle Paper Co. v. Moody, 45 L .Ed. 2d

280 (1975) ................... ................... 7

Allison v. Wilson, 277 F.Supp. 271 (N.D. Cal. 1967) . 16
Argersinger v. Hamlin, 407 U.S. 25 (1972) ..........  10
Beverly v. Lone Star Lead Construction Co.,

437 F . 2d 1136 (5th Cir. 1971) ...................  i3
Bradley v. School Board of the City of Richmond,

416 U.S. 696 (1973) .............................. i7
Burns v. Thiokol Corp., 483 F.2d 300 (5th Cir.

1973) .........   9

Caston v. Sears, Roebuck Co., No. 75-3679 ..........  4
Chance v. Board of Examiners, 458 F.2d 1167

(2d Cir. 1972)     9
Edmonds v. E. J. duPont de Nemours & Co.,

315 F.Supp. 523 (D. Kan. 1970) ..................  9, 20
Eisen v. Carlisle & Jacquelin, 370 F.2d 118

(2d Cir. 1966)    6
Farretta v. California, 45 L.Ed. 2d 562 (1975) .....  6
Flowers v. Turbine Support Division, 507 F.2d

1242 (5th Cir. 1975) ............................  4> 5

Ford v. United States Steel Corp., 520 F.2d 1043
(5th Cir, 1975)    10

Franks v . Bowman Transportation Co., 495 F.2d
398 (5th Cir. 1974) ................... ]......... 9

Harris v. Walgreen's Distribution Center, 456
F.2d 588 (6th Cir. 1972) ........................  14

Page

. v • r ■

-ii-



*■ * V  .4 '

Huff v. N.D. Cass, 485 F.2d 710 (5th Cir. 1973) ___  9
Huston v. General Motors Corp., 477 F.2d 1003

(8th Cir. 1973)   20
H. Kessler v. E.E.O.C., 472 F.2d 1147

(5th Cir. 1973)   8
Local 189 v. United States, 416 F.2d 980

(5th Cir. 1969) ................................  g
McDonnell Douglas Corp. v. Green, 411 U.S.

792 (1973) .....................................  g, 13, 14
Miller v. Pleasure, 296 F.2d 283 (2d Cir. 1961) ___ 5
Newman v. Piggie Park Enterprises, 390 U.S

400 (1968) .....................................  7, 10f n
Otis v. Crown-Zellerbach, 398 F.2d 496

(5th Cir. 1968) ........    g
Petete v. Consolidated Freightways, 313 F.Supp.

1271 (N.D. Tex. 1970) ..........................  a, 15
Powell v. Alabama, 287 U.S. 45 (1932) .............  10
Roberts v. United States District Court,

339 U.S. 844 (1950) ............................  5
Robinson v. Western Electric Co., 3 EPD f 8240

(7th Cir. 1971)   14

Sanders v. Russell, 401 F.2d 241 (5th Cir. 1971) ... 8
Spanos v. Penn Central Transportation Company,

470 F . 2d 806 (3d Cir. 1972) ....................  5
United States v. Birrell, 482 F.2d 896

(2d Cir. 1973)     5
United States v. Georgia Power Co., 474 F.2d

906 (5th Cir. 1973).............................  10

Page



Page

Statutes:
28 U.S.C. § 1915
42 U.S.C. § 2000e; Title VII of the 

1964 Civil Rights Act .........

.......  2, 12, 18

4, 9, 10, 15, 16, 18
42 U.S.C. § 2000e-5 (f) ; Title VII of 

the 1964 Civil Rights Act, section 
706(e) ....... ................. 1, 2, 6, 8, 11, 12, 13, 

15, 16, 18, 19, 20
27 Stat. 252 13
86 Stat. 1127 17

Other Authorities:
1974 U.S. Code Congressional and

Administrative News 1372 .......................  27
110 Cong. Rec. ........................  8, 11, 12, 14, 17, 18
Federal Rules of Civil Procedure ...........

-iv- V' .•



IN THE

UNITED STATES COURT OF APPEALS 
FOR THE FIFTH CIRCUIT

No. 75-3925

FULTON CASTON,

Plaintiff-Appellant,
v.

SEARS, ROEBUCK AND CO., etc.,

Defendant-Appellee.

On Appeal From The United States District Court 
For The Southern District of Mississippi

BRIEF FOR APPELLANT

STATEMENT OF THE ISSUES 
PRESENTED FOR REVIEW

(1) Is the order of the district court refusing to 
appoint counsel pursuant to section 706(e) of Title VII 
of the 1964 Civil Rights Act appealable?

(2) Did the district court apply the correct standards 
in refusing to appoint counsel pursuant to section 706(e)?



STATUTORY PROVISIONS INVOLVED

Section 706(e) of Title VII of the 1964 Civil Rights 
Act, 42 U.S.C. §2000e-5(f) provides in pertinent 
part:

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 payment of 
fees, costs, or security.

Section 1915(d), 28 U.S.C., 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, of if satisfied that the 
action is frivolous or malicious.

- 2 -

t



STATEMENT OF THE CASE

For several years prior to 1974 plaintiff, a 
black man, was employed by the Sears, Roebuck & Company 
in Hattiesburg, Mississippi. On January 28, 1974,
plaintiff was discharged. On January 30 , 1974, plain­
tiff filed a timely charge with the Equal Employment 
Opportunity Commission alleging that he had been dis­
charged because of his race. On May 29, 1975, the 
Acting District Director of the Jackson Office of E.E.O.C. 
issued a determination that there was not "reasonable cause 
to believe that Charging Party was discharged because of 
his race." A3.

On May 29, 1975. the E.E.O.C. issued to plain­
tiff a Notice of Right to Sue which stated in pertinent 
part:

If you are unable to retain an attorney, 
the Federal District Court is authorized 
in its discretion to appoint an attorney 
to represent you . . . .  If you decide to 
institute suit and find you need assistance, 
you may take this letter, along with any cor­
respondence you have received from the Com­
mission, to the Clerk of the Federal District 
Court nearest to the placevhere the alleged 
discrimination occurred, and request that a 
Federal District Judge appoint counsel to 
represent you. A3.

On September 15, 1975, plaintiff-appellant went to the 
United States District Court in Hattiesburg, Mississippi, 
and asked that such counsel be appointed to assist him.
The district court refused to do so because the E.E.O.C. 
officials had not sustained plaintiff's charge of dis­
crimination. A 16 The court gave plaintiff 10 days in
which to retain an attorney. A .16.

-3p£
When plaintiff



protested this denial of counsel as unfair, the district 
judge, the Hon. Harold Cox, summarily found him in con­
tempt of court and sentenced him to 90 days in jail.
This contempt conviction is the subject of another appeal 
in this Court. Caston v. Sears, Roebuck & Co., No. 75-3679 
Despite the 10 day deadline it had established for retaining 
counsel in this civil action, the district court directed 
that plaintiff begin serving the 90 day sentence immediately 
Twelve days later, after the deadline had passed, the dis­
trict court permitted plaintiff to be released on bail 
pending the appeal of his criminal conviction.

Plaintiff's counsel in the instant civil appeal 
have undertaken to represent him solely in connection with 
this appeal from the denial of appointed counsel. They 
have not agreed to represent plaintiff in any proceeding 
on the merits in the district court and do not seek a 
court assignment to do so.

ARGUMENT
I - The District Court's Order Denying 
Appointed Counsel Is Appealable

This Court's decision in Flowers v. Turbine 
Support Division, 507 F.2d 1242 (5th Cir. 1975), clearly 
establishes that the denial of counsel is an appealable 
order. In Flowers plaintiff, nine months after filing 
suit under Title VTI, applied for in forma pauperis 
status, and appealed when the request was denied. This 
Court held:

4



Orders denying applications to 
proceed ISU?>*M;e appealable as final 
decisions for reasons similar to 
those which prompted the Supreme Court 
to hold that the order in Cohen v.
Beneficial Industrial Loan Corp., 337 
U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 
(1949) was appealable. An order denying 
IFP status finally decides an important 
issue which is collateral to the merits 
of the case. It is an order which"is "too 
important to be denied review and too in­
dependent of the cause itself to require 
that appellate consideration be deferred 
until the whole case is adjudicated.
Cohen, supra, at 546 69 S.Ct. at 1226.
More importantly, it is an order the 
review of which cannot be deferred until the 
whole case is decided. Denial of IFP, if 

— erroneous, tends to close the door of the 
courthouse to the true pauper, forcing him 
to forfeit his day in court. Such a person 
has little hope of successfully prosecuting 
his case to a traditional final judgment.

507 F.2d at 1244. The Supreme Court held such denials
appealable in Roberts v. United States District—Court,
339 U.S. 844 (1950). The reasoning of Flowers and Roberts
applies as well to a request for the appointment of
counsel, denial of which is as likely to prevent
meaningful prosecution of a case as a denial of forma paupe_ris
treatment. The Second and Third Circuits have both held
that the denial of appointed counsel is an appealable order.
Miller v. Pleasure, 296 F.2d 283, 284 (2d Cir. 1961);
Spanos v. Penn Central Transportation Company, 470 F.2d
806 807-8, n.3 (3d Cir. 1972); United States v. Birrell,

482 F.2d 896, 892 (2d Cir. 1973).
The denial of appointed counsel will be, in 

most cases, "the death knell of the action." Eisen v.

5



Carlisle & Jacquelin, 370 F.2d 118, 121 (2d Cir. 1966).
In view of the complexities of Title VII law, and with 
the defendant represented by skilled counsel, it would 
usually be foolhardy for an aggrieved employee to attempt 
to prosecute such a case pro se. Farretta v. California,
45 L.Ed. 2d 562, 581, 592 (1975). Where a request for 
counsel under § 706(e) is denied, the preferred practice 
is clearly to pursue an appeal directly from that order.
To require an employee to go forward without the assistance 
of counsel would serve no end other than to humiliate 
the plaintiff by forcing him to abandon his claim or go 
through the motions of a trial which would be but a carica­
ture of justice and whose conclusion would never be in 
doubt.
II. The District Court Erred in Denying Appointed 
Counsel

The district court refused to appoint counsel 
to represent Appellant solely because an E.E.O.C. official 
had not found probable cause to conclude the defendant 
had discriminated against plaintiff. That refusal was 
erroneous as a matter of law, and squarely in conflict 
with the purposes of section 706(e) and Title VII.

Section 706(e) of Title VII of the 1964 Civil 
Rights Act, 42 U.S.C. § 2000e-5 (f) (1), provides in 
pertinent part:

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,

-6-



or security.
This provision, like all other remedies under the Act,
is one which the courts "may" invoke, but that term
does not convey broad unfettered discretion.

The scheme implicitly recognizes that 
there may be cases calling for one 
remedy but not another, and - owing to 
the structure of the federal judiciary - 
these choices are of course left in the 
first instance to the district courts.
But such discretionary choices are not 
left to a court's "inclination, but to 
its judgment; and its judgment is to 
be guided by sound legal principles." 
United States v. Burr, 25 Fed Cas 30,
35 (Marshall, C. J.). The power to 
award backpay was bestowed by Congress, 
as part of a complex legislative design 
directed at an historic evil of national 
proportions. A court must exercise this 
power "in light of the large objectives 
of the Act," Hecht Co. v. Bowles, 321 
US 321 .331.

Albemarle Paper Co. v. Moody, 45 L.Ed. 2d 280, 295-96 

(1975).
When Title VII was adopted in 1964,Congress 

recognized "that enforcement would prove difficult and 
that the Nation would have to rely in part upon private 
litigation as a means of securing broad compliance with.,,, • 
the law." Newman v. Pigqi'e^ark Enterprises, 3 90 U.S.
400, 401 (1968). Congress also forsaw that most aggrieved 
parties would be unwilling or unable to bear the cost 
of successfully prosecuting an action under the 
statute. Id- at 402 • To assure that enforcement of 
the law would not be hindered by these costs, Congress

-7-



provided for counsel fees for prevailing plaintiffs 
and authorized court appointed counsel as well- The 
latter provision was deemed necessary because the 
mere possibility of a contingent court awarded fee 
might not prove sufficient to persuade an attorney to 
undertake a Title VII case.

Cost was not the only concern which prompted 
the adoption of section 706(e). Congress was also aware 
that "other justifiable reasons" might prevent an ag­
grieved party from obtaining the assistance of counsel

uthrough ordinary means. This Court has long recognized
the difficulty in finding attorneys to handle cases of
this sort. In Sanders v. Russell, 401 F.2d 241, 245
(5th Cir. 1971) the Court noted:

It is no overstatement that in Mississippi 
and the South generally negroes with civil 
rights claims or defenses have often found 
securing representation difficult. . . .
[I]n damage cases brought by negro plain­
tiffs against white defendants, the slight 
chance of contingent fee recovery does not 
suggest that economic benefits are or will 
be such as to outweigh, for appreciable 
numbers of Mississippi lawyers, their re­
luctance to become identified with the 
negro civil rights effort.

In H. Kessler & Co. v. E.E.O.C., 472 F. 2d 1147, 1152
(5th Cir. 1973) the Court observed:

The courts of this circuit have previous-ly 
found that competent lawyers are not eager 
to enter the fray in behalf of a person 
seeking redress under Title VII. This is 
true even though provision is made for 
payment of attorney's fees in the event of 
success.

In Petete v. Consolidated Freightwavs, 313 F.Supp. 1271,
/ Section 706(e); 42 U.S.C. § 2000e-5(f).

_/ See 110 Cong. Rec. 12713 (Remarks of Sen. Humphrey),
-8-



1272 (N.D. Tex. 1970), Judge Hughes found the attorneys 
whom Petete had approached reluctant "to undertake the 
specific and complex challenges of a Title VII lawsuit 
which are not common to more frequently litigated areas 
of the law," a problem similar to that noted by Judge 
Templar in Edmonds v. E.J. duPont de Nemours & Co^,

315 F.Supp. 523, 524 (D. Kan. 1970).
Congress correctly forsaw that Title VII 

litigation would present problems with which layman, 
and in some cases ordinary practitioners, were not 
equipped to deal. Over the last decade the appellate
courts have struggled with difficult questions of pro-

3 / / . . .  . , . , cedure, burden of proof, definitions of violations and
6_/

limitations on remedies,creating in the process a highly
complex body of case law to be applied in each case.
The presentation of a Title VII action frequently involves
extensive discovery” analysis of complicated and sometimes

8_/ .  ̂
inconsistent statistics, the assistance of a variety of

3 / See e.q. Otis v. Crown-Zellerbach, 398 F.2d 496 
7*5th Cir. 1968) ; Huff v. N. D. Cass, 485 F.2d 710 (5th 
Cir. 1973).
4 / see e.g. McDonnell Douglas Corp. v. Green, 411 U.S. 
792 (1973) .
_5J  see e.g. Local 189 v. United States, 416 F.2d 980 
(5th Cir. 1969).
6 / see e.g. Franks v. Bowman Transportation Co^, 495 
F2d 398 (5th Cir. 1974), certiorari granted 420 U.S.
989.
7 / see e.g. Burns v. Thiokol Corp._, 483 F.2d 300 (5th 
Cir. 1973) .
8 / See e.g. Chance v. Board of Examiners, 458 F.2d 1167 
X?d Cir. 1972).

-9-



_9_/ - 10/
technical experts, and trials of substantial duration.
As a practical measure the outcome of a Title VII action
will frequently have a far more profound effect on the
life of the employee and his family than a misdemeanor
prosecution in which he would be entitled to the
assistance of counsel as a matter of constitutional
right. Argersinger v. Hamlin, 407 U.S. 25 (1972). Such
an employee clearly "requires the guiding hand of counsel
at every step in the proceedings" in a case such as this.
Powell v. Alabama, 287 U.S. 45, 69 (1932).

The effectuation of the national goal of eliminat­
ing discrimination "root and branch" requires that viola­
tions of Title VII be enjoined, and the victims thereof 
made whole, whenever those violations occur. Such litiga­
tion is private in form only; in fact the aggrieved party, 
often obscure, takes on the mantel of the sovereign and 
vindicates "a policy Congress considered of the highest 
priority." Newman v. Piggie Park Enterprises, 390 U.S.
400 (1968). That policy would be easily defeated if 
private actions were not initiated in the large number 
of cases in which the aggrieved employee is unable to 
afford or obtain counsel, or understandably unwilling 
to risk much of his meagre savings in the uncertainties

9 / see e.g. United States v. Georgia Power Co., 474 
F .2d 906 (5th Cir. 1973).
10/ See e.g. Ford v. United States Steel Corp., 520 F.2d 
1043 (5th Cir. 1975).

-10-



of litigation. There are real financial limitations on 
the number of contingent fee Title VII cases any individual 
attorney or firm can handle, particularly in view of the 
many years that may pass between the filing of a complaint 
and a final judgment and award of counsel fees. Section 
706(e) is an essential part of the Congressional scheme 
to enable and "encourage individuals injured by racial 
discrimination to seeh judicial relief." Newman v.
Piggie Park Enterprises, 390 U.S. at 402. The respon­
sibility of the district court in administering section 
706(e) is to determine whether the case before it is 
one presenting the problem which that section was intended 
to resolve, i.e. whether the case is one which, as a 
practical matter, will not be pursued without the assistance 
of court appointed counsel.

In deciding whether to appoint counsel under 
section 706(e) the district court is not generally 
authorized to consider the merits of the underlying 
claim. The legislative history of this provision, as 
the identical language in Title II, indicates that the 
sole consideration is whether or not the plaintiff is 
able to retain counsel on his own. Senator Humphrey 
explained:

Since it is recognized that the main­
tenance of a suit may impose a great 
burden on a poor individual complain­
ant, the Federal court may, on applica­
tion of the complainant, appoint an 
attorney for him . . . .H /

— --------------------------------
11/ 110 Cong. Rec. 12722 (1976).

-11-
I



Regarding the same provision in Title II, Humphrey stated,
Relief would be possible for persons 
experiencing denial of their rights 
under Title II who, for financial or 
other justifiable reasons, are unable 
to bring and maintain a lawsuit.12/

The language of section 706(e) does not authorize
any judicial inquiry into the merits of the claim which
the applicant wishes to pursue. Unlike 28 U.S.C. § 1915,
which expressly contemplates consideration of whether a
proposed forma pauperis action may be "frivolous or 

13/malicious", section 706(e) contains no such provision.
A court could not, consistent with section 706(e),

limit appointed counsel to cases it thought likely to 
succeed. For the court to consider, in the absence of 
counsel, the merits or probable outcome of the action 
would be to create the very problem section 706(e) was 
adopted to avoid. The statute was intended to assure 
that all employees would have the assistance of counsel 
before a court considering questions of law and fact; 
such a court could not properly undertake to decide 
those questions, even tentatively, before, and especially 
in considering the desirability of, appointing such counsel. 
There may appear on the face of a claim jurisdictional 
or other problems likely to lead to its early demise; 
to decide those questions in the absence the counsel for 
plaintiff, because he was too poor or otherwise unable

12/ 110 Cong. Rec. 12713 (1975).
13/ "(d) The court may request an attorney to represent
any such person unable to employ counsel and may dismiss

-12-



to afford counsel, would perpetuate the type of unequal 
treatment section 706 (e) was designed to prevent and 
would raise serious problems of due process. If a claim 
is indeed fatally defective, the Federal Rules of Civil 
Procedure provide a variety of methods for its prompt 
dismissal; it is these traditional procedures, applicable 
to the rich and poor alike, which should be invoked to 
dispose of actions that may be frivolous, malicious, or 
otherwise insubstantial.

These considerations apply, a fortiori,to 
the instant case. The sole reason given by the district 
court for refusing to appoint counsel was that the Acting 
District Director of the Jackson Office of the E.E.O.C. 
had concluded that there was not reasonable cause to 
believe that plaintiff was the victim of discrimination.
A 16. But the absence of a finding of reasonable cause 
by E.E.O.C. is not grounds for the dismissal of an action 
under Title VII. McDonnell Douglas Corp. v. Green, 411 
U.S. 792, 797 (1973); Beverly v. Lone Star Lead Construc­
tion Co., 437 F . 2d 1136, 1138-39 (5th Cir. 1971). As Senator 
Javits pointed out in the 1964 debates:

13/ cont'd
the case if the allegation of poverty is untrue, or if 
satisfied that the action if frivolous or malicious." As 
originally adopted in 1892 section 1915 provided, inter 
alia, "That the court may request an attorney of the 
court to represent such poor person, if it deems the 
case 'worthy of a trial' . . .." 27 Stat. 252.

-13-



The Commission may find the claim 
invalid; yet the complainant still 
can sue . . . the Commission does not 
hold the key to the Courtroom door. 14./

If the district court's decision were correct, McDonnell 
Douglas and Beverly would apply only to relatively affluent 
employees able to retain private counsel. For all other 
employees an adverse decision by officials of the E.E.O.C. 
would, as a practical matter, be fatal to their claim. 
Nothing in Beverly or McDonnell Douglas suggested their 
holdings covered only the well to do, and nothing in the 
legislative history of Title VII suggests Congress con­
templated different rules for employees of different 
economic standing.

The two courts of appeals which have considered
this question have both concluded that the appointment of
counsel cannot be denied because the E.E.O.C. concludes
there is not probable cause to believe the allegation of
discrimination. In Harris v. Walgreen's Distribution
Center, 456 F.2d 588 (6th Cir. 1972) the court held:

We agree that denial of counsel is not 
mandated by an E.E.O.C. finding of no 
probable cause. Indeed, we would regard 
a record which showed this as the sole 
reason for denial of counsel as founded 
on error.

456 F.2d at 590. Similarly the Seventh Circuit ruled 
that such a finding would not justify refusing to appoint
counsel under section 706(e). Robinson v. Western Electric 
Co., 3 EPD f 8240 (7th Cir. 1971).

IdS 110 Cong. Rec. 14191 (1975).

-14-



III. Procedure on Remand
On remand the district court must consider anew 

appellant's request for appointed counsel. Although 
section 706(e) has been the law for a decade, the district 
courts in this Circuit, as elsewhere, have not developed 
clear and effective procedures for handling requests for 
counsel under Title VII. For this reason, and to minimize 
the need for further appeals on that issue in this case, 
it would be appropriate for this Court to clarify the 
standards to be applied by the district court on remand.

The economic circumstances which would warrant 
the appointment of counsel must be measured with regard 
to the underlying statutory purpose. Aggrieved employees 
need not contribute "the last dollar they have or can 
get, and thus make themselves and their dependents wholly 
destitute." Adkins v. duPont Co., 315 U.S. 331, 340 
(1948). In providing for private enforcement of Title VII, 
Congress understood that an ordinary worker could not be 
expected to risk his life savings or mortgage his home 
to finance a lawsuit, no matter how meritorious his claim.
The assistance authorized by section 706(e) is not limited 
to paupers, for such a limitation would exclude the employees 
of modest means who could not reasonably be asked to imperil 
their economic security by undertaking to bear the substan­
tial cost of a Title VII action. Petete v. Consolidated 
Freightways, 313 F.Supp. 1271, 1272 (N.D. Tex. 1970). A

-15-



plaintiff cannot be expected to contribute »ore to the 
financing of such an action than a reasonably prudent 
man in similar circumstances would choose to spend, mind­
ful of the needs of himself and his family and of the 
unavoidable uncertainties of such litigation. To the 
extent that such a contribution would be inadequate to 
bring and maintain a Title VII action, assistance under 
section 706(e) is required. If on remand, a question is 
raised as to whether appellant is affluent enough to pay 
for his own counsel, the assistance of the court can 
only be denied if it is shown by clear and convincing

evidence that such aid is unnecessary.
The district courts may employ a variety of 

methods to finance the appointment of counsel, not all^ 
of which would involve the expenditure of court funds.
The court may, in an appropriate manner, attempt to 
persuade counsel to represent the applicant without 
any fee other than what may be awarded under section 706(e) 
if plaintiff prevails. The court could provide, in the 
appointment, that the size of any counsel fee awarded 
against the defendant would be augmented because the 
case had been assigned by the court. The order might 
provide that any attorney's fee awarded against the

TT/ The district court in the instant case correctly recognized
it£ authority to order such expenditures  ̂ A 16. _cleariy
Wilson, 277 F.Supp. 271, 274 (N-D. Cal. x Q^taile^ hy section
understood that such expendi u proposed an amendment706(e). Senator Thurmond unsuccessfully P ™ P ° = f functlon of the
£ a » £ n  f t

^ r t h e r S r e !  «  f i d  of Title VII
Cs —



defendant would be computed on the usual basis, with the 
court paying the attorneys out-of-pocket expenses and/or 
overhead if the case were lost. The assignment could 
provide for a fee to be computed on a pre-determined 
basis and paid by the court, with any awarded counsel fee 
in excess of this amount to be remitted to the court. In 
a case of significant length or consuming substantial 
amounts of time within a short period, an interim award 
of fees or expenses may be proper. Bradley v. School 
Board of the City of Richmond, 416 U.S. 696, 773 (1973).
The appropriate method of compensation should be fashioned 
by the district court in the light of local conditions to 
assure that aggrieved employees are represented by experienced 
counsel without imposing an inappropriate financial burden 
on attorneys who in many cases may already be handling a 
significant number of civil rights actions on a pro bono 
or contingent fee basis.

In selecting counsel for appointment the district 
court should bear in mind several considerations. Because 
the issues in these cases may be or become matters of sub­
stantial public controversy, and because questions of law 
which will arise may well affect the interests of other 
employers, the court should assure itself that the attorney's

15/ cont'd-
of the substitute the proposed authority of the Court to 
appoint an attorney for a complainant in suits alleging 
denial of equal employment opportunities." 110 Cong.
pe. i4196 (1975). Such expenditures clearly fall within 
the appropriation for "miscellaneous expenses" contained 
in the Judiciary Appropriations Acts. See 86 Stat. 1127;
1974 U„S. Code Congressional and Administrative News, 1372.

-17-



advocacy is not likely to be inhibited by concern with 
the competing interests of other clients, fear of unpopu­
larity, or in equivocal attitude toward the statutory 
goal of equal opportunity. An effort should be made to 
identify attorneys who have significant experience with 
the highly complex issues that may arise in a Title VII 
case, especially where a class action is involved. Due 
deference should be given to any preference on the part 
of the employee, especially where grounded on a good 
faith concern as to the comparative attitudes of attorneys 
towards his minority group or the purposes of Title VII.

The district court on remand should make a 
reasonable effort to locate an attorney who would welcome 
the assignment of a case such as this. In the field of 
civil rights, unlike an ordinary action in contract or 
tort, certain attorneys may be personally indifferent or 
hostile to the underlying statutory policies. To avoid 
saddling an indigent plaintiff with such counsel, the 
court should look first to members of the bar who have 
previously undertaken voluntarily to represent civil 
rights litigants. If, however, no attorney can be found 
agreeable to being assigned as counsel, the court can 
and must order an appropriate attorney to represent 
appellant. Unlike § 1915(d) which merely permits the 
court to "request an attorney to represent any such person 
unable to employ counsel," section 706(e) entails the 

power to "appoint" an attorney Congress expressly re­
jected a proposal to limit section 706(e) by providing

18-



that the court could only make an appointment "with the
16/consent of such attorney." Section 706(e) was adopted, 

in part, to give the court the power to require an attorney 
to represent a plaintiff when no known attorney will do so 
voluntarily; when the court cannot find such a volunteer, 
that power must be exercised. If, on the other hand, a 
potential plaintiff locates an attorney who would like 
to handle the case but declines to do so without a court 
appointment, the Court in selecting counsel should give 
appropriate consideration to that expression of interest..

In carrying out its responsibilities under 
section 706(e) the court must follow procedures which 
reflect the fact that the plaintiff is, by definition, 
without counsel and often of limited education or

1z/
familiarity with legal matters. If a plaintiff indicates 
to the court, directly or through the clerk of the court, 
his desire for assistance in obtaining counsel, the courc 
must act. That assistance cannot be conditioned on anything 
other than the possession of a Right to Sue letter and the 
making of an appropriate request. Where the court needs 
additional information from the plaintiff to shape its 
response, that information should be sought in an efficacious

16/ 110 Cong. Rec. 14201 (1975). The proposed amend­
ment by Senator Ervin would have applied to appointments 
under Titles II and VII. See also 110 Cong. Rec. 14462. 
(Remarks of Sen. Holland) (1975).
17/ This includes, of course, any person who has received 
a Right to Sue letter but not yet filed a complaint.

Such an indication should normally be deemed to con 
stitute the commencement of a civil action for the purposes



and informal manner unlikely to intimidate a layman.
If the court believes there is a reasonable possibility 
that plaintiff could retain counsel on a contingent fee 
or other basis, without resort to a section 706(e) appoint­
ment, the court should offer appropriate assistance in

12/finding such counsel. Should such efforts prove unsuc­
cessful, and the court thus conclude that the plaintiff 
is unable for financial or other reasons to retain counsel 
other than through an appointment under section 706(e), 
such an appointment must be made. In administering section 
706(e) the court has an affirmative responsibility to 
carry out the congressional policy that any aggrieved 
employee who wishes to pursue his claim in court shall 
have the assistance of counsel.

18/

17/ cont'd.
of the deadline established by 42 U.S.C. § 2000e-5(e).
Huston v. General Motors Corp., 477 F.2d 1003 (8th Cir.
1973) .
1_8/ It sould be inappropriate, under ordinary circumstances, 
for the court to require the filing of oaths, statements, 
inventories of assets or affidavits to be prepared by the 
plaintiff. Edmonds v. E.J. duPont de Nemours & Co. , 315 
F.Supp. 523, 526 (D. Kan. 1970).
19/ The court is far more likely than the plaintiff 
1 know which attorneys in the community have experience 
i Title VII cases and have in the past indicated a 
willingness to handle such matters. The court might 
provide this information to plaintiff or communicate 
directly with the attorney involved; it should not impose 
or. plaintiff the unnecessary burden of approaching large 
numbers of attorneys at random merely to deminstrate the 
predictable futility of such an undertaking.

-20-



CONCLUSION
For the above reasons the order of the district 

court of September 18, 1975, should be reversed and the 
case remanded with instructions to appoint counsel to 
represent plaintiff.

Respectfully submitted,

JACK GREENBERG 
MELVYN LEVENTHAL 
ERIC SCHNAPPER 

Suite 2030 
10 Columbus Circle 
New York, New York 10019

RONALD REID WELCH 
FRANK R. PARKER

233 North Farish Street 
Jackson, Mississippi 39201

-21-



CERTIFICATE OF SERVICE

I hereby certify that on this 2nd day of 
February, 1976, I served copies of appellant's 
brief and appendix on appeal on counsel for respondent 
by depositing them in the United States mail, first class 
postage prepaid, addressed to Wayne Easterling, Esq., 5th 
Floor, Citizens Bank Building, Hattiesburg, Mississippi 
39401; Frank Nix, Esq., 1200 C & S National Bank Building, 
Atlanta, Georgia 30303 and Marleigh Dover Lang, Esq.,
Equal Employment Opportunity Commission, 2401 E. Street, 

N.W. Washington, D.C. 20506.

Eric Schnapper