Unpublished Disposition, 902 F.2d 38 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 902 F.2d 38 (9th Cir. 1990)

Roberta Angela BROXSON, Plaintiff-Appellant,v.Clayton K. YEUTTER, Secretary of Agriculture,**  Defendant-Appellee.

No. 88-6391.

United States Court of Appeals, Ninth Circuit.

Submitted Sept. 1, 1989.* Decided May 1, 1990.

Before BROWNING, KOZINSKI and RYMER, Circuit Judges.


Broxson appeals denial of her request for appointment of counsel under the Civil Rights Act of 1964. 42 U.S.C. § 2000e-5f(1). The Act provides for appointment of counsel in employment discrimination cases "in such circumstances as the court may deem just." We review the district court's decision for abuse of discretion. Ivey v. Board of Regents of University of Alaska, 673 F.2d 266, 269 (9th Cir. 1982).

Although the district court is given broad discretion in deciding whether to appoint counsel, "the exercise of that discretion necessarily entails a reasoned and well-informed judgment." Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir. 1984). Three factors are generally considered relevant in deciding whether to appoint counsel: (1) the financial resources of the plaintiff; (2) the plaintiff's efforts to secure counsel; and (3) the merits of the plaintiff's claim. Ivey, 673 F.2d at 269.

The district court's order makes no findings. All that it says is that appointment is not mandatory and " [i]n addition, the court is unaware of any counsel willing to be appointed and there are no funds available to pay counsel if one were appointed." From the record it would appear that because Broxson was permitted to proceed in forma pauperis, she necessarily lacks financial resources and so has satisfied the first prong of the test. Bradshaw v. Zoological Soc. of San Diego, 662 F.2d 1301, 1319 (9th Cir. 1981); Ivey, 673 F.2d at 269. The record also indicates that she unsuccessfully contacted several attorneys, and that the EEOC found that Broxson's complaint failed to state a claim. Whether the court considered these factors, or there is any basis for denying Broxson's request if these factors are given appropriate weight in light of the record, cannot be ascertained. Compare Bradshaw, 662 F.2d at 1319 (by contacting ten attorneys plaintiff made "reasonably diligent effort under the circumstances" to obtain counsel), Slaughter, 731 F.2d at 589 (refusal to appoint counsel solely because the EEOC found no reasonable cause to believe that a claim exists would be error) and Ivey, 673 F.2d at 269 (contacting ten attorneys demonstrated plaintiff was unable to secure counsel for appointment; plaintiff's case lacked sufficient merit to warrant appointment). Accordingly, the decision of the district court is reversed and the case is remanded for proceedings consistent with this opinion.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


Clayton K. Yeutter has been substituted for Richard E. Lyng pursuant to Rule 43(c) (1) of the Federal Rules of Appellate Procedure


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3