846 F. 2d 1383 - Wheeler v. Dole

Vincent Wheeler appeals pro se a judgment that the Federal Aviation Administration did not discriminate against him. He also appeals the district court's denial, on two separate occasions, to appoint counsel on his behalf. Wheeler originally framed his action and complaint under Title VII, as well as sections 1981 and 1983. See 42 U.S.C. Secs. 1981, 1983, 2000e to 2000e-17. The Pretrial Conference Order, which the parties and the court signed and filed, limited the action to one "brought under the Rehabilitation Act of 1973, as amended, 29 U.S.C. Sec. 701 et seq. and 42 U.S.C. Sec. 2000e et seq."

Less than three weeks after Wheeler filed his complaint, the district court denied his first motion for appointment of counsel. The district court stated two grounds for denying the motion. First, it found that the provision for appointment of counsel in Title VII, 42 U.S.C. Sec. 2000e-5(f)(1), could not assist Wheeler because his complaint, based on a physical handicap, did not state a claim under Title VII, 42 U.S.C. Sec. 2000e-16. This decision was correct, and the district court properly exercised its discretion not to appoint counsel under 42 U.S.C. Sec. 20003-5(f)(1). See Ivey v. Board of Regents of the University of Alaska, 673 F.2d 266, 269 (9th Cir.1982).

The district court also stated: "The Court further finds that no other statute under which plaintiff could state a cause of action provides for the appointment of counsel." It appears the district court was correct that there is no other statute, under which Wheeler could state a cause of action, which provides for appointment of counsel. But appointment of counsel is authorized for indigent persons under 28 U.S.C. Sec. 19151 regardless of whether a suit is being prosecuted under a cause of action that provides for the appointment of counsel. As we stated in United States v. McQuade, 579 F.2d 1180, 1181 (9th Cir.1978): "The court does have discretionary authority under 28 U.S.C. Sec. 1915(d) to appoint counsel for an indigent to commence, prosecute or defend a civil action."

We cannot tell from the record before us whether Wheeler mentioned indigency in his motion for appointment of counsel, which motion the court denied by its order filed March 24, 1983. In denying the motion, the district court made no reference to indigency. On March 28, 1985, Wheeler filed a second motion for appointment of counsel. In this motion he stated he was "no longer able to afford a lawyer to prosecute his claim." The district court denied this second motion by a minute order entry, without comment. If Wheeler alleged indigency in his initial application for appointment of counsel, the district court's order denying his request reflects a refusal to consider indigency as a possible basis for appointment of counsel. If Wheeler did not allege indigency in his initial application, the court's order reflects a failure to consider indigency. In denying the application, the court stated, in effect, that it could only appoint counsel for Wheeler if he were prosecuting some cause of action which provided for appointment of counsel. We assume the court remained of this view when it denied, without comment, Wheeler's second request for counsel.

In McQuade, the government sued taxpayers to foreclose tax liens. The taxpayers filed a pro se answer in which they requested appointment of counsel. "No specific allegation of poverty or inability to pay costs or attorneys' fees was made," although they "did allege that they were unable to obtain an attorney and that in a previous related matter the Federal Public Defender was appointed to assist them." McQuade at 1180. At an oral hearing, the taxpayers renewed their request for appointment of counsel. The district court stated: "I don't have any authority" to appoint counsel because "this is a civil action." Id.

Here, the court stated it did not have any authority to appoint counsel because Wheeler could not state a cause of action under a statute which provided for the appointment of counsel. Based upon the record, it appears the district court did not consider its authority to appoint counsel under section 1915. In McQuade we remanded "to afford the appellants an opportunity to make an appropriate motion under 28 U.S.C. Sec. 1915, and for the court to exercise its discretion under the provisions of that statute." Here we do not.

A successful section 1915(d) motion is rare, and an indigent civil litigant must present "exceptional circumstances" to merit an appointment under this section. See United States v. 30.64 Acres of Land, 795 F.2d 796, 798 (9th Cir.1986); Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir.1980). No exceptional circumstance exists in this case. Wheeler was not rejected from employment as an air traffic controller because of any handicap discrimination. His color vision impairment resulted in his inability to promptly and correctly interpret essential color-coded safety critical information encountered by air traffic controllers. This vision impairment would have been a sufficient basis for Wheeler's rejection from employment as an air traffic controller. Independent of his color vision impairment, however, Wheeler's low score among the rated applicants for the air traffic controller positions would have prevented his selection as an air traffic controller. Wheeler's discrimination claim was totally without merit.

AFFIRMED.