Unpublished Disposition, 904 F.2d 40 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 904 F.2d 40 (9th Cir. 1990)

Kamal B. MAHDAVI, Plaintiff-Appellant,v.The DIRECTOR OF the OFFICE OF PERSONNEL MANAGEMENT,Defendant-Appellee.

Nos. 87-15067, 88-1790.

United States Court of Appeals, Ninth Circuit.

Argued and Submitted April 16, 1990.Decided May 24, 1990.

Before HUG, SKOPIL and SCHROEDER, Circuit Judges.


MEMORANDUM* 

These are appeals from the district court's grant of summary judgment in a civil rights action and from the magistrate's imposition of sanctions for violation of a discovery order. Appellant Kamal Mahdavi contends that the district court erred by (1) refusing to make a coercive appointment of counsel; (2) rejecting a motion to recuse; and (3) granting summary judgment. He contends that the magistrate lacked the authority and the jurisdiction to impose sanctions. We reject these contentions and we affirm.

DISCUSSION

Title VII authorizes the appointment of counsel "in such circumstances as the court may deem just." 42 U.S.C. § 2000e-5(f) (1) (B) (1982). Here the district court sought to obtain voluntary counsel for Mahdavi but when that effort failed, the court refused to make a coercive appointment. A district court does not abuse its discretion when, after failing to recruit voluntary counsel in a Title VII action, the court declines to coercively appoint counsel. See Bradshaw v. United States Dist. Court for S.D. Cal., 742 F.2d 515, 517 (9th Cir. 1984).

A litigant who contends that a judge is biased may move to recuse the judge. 28 U.S.C. § 144 (1982). Here, Mahdavi's motion to recuse Judge Henderson was referred to another judge who found that the motion lacked "specific factual support" and that it contained only "paranoid allegations." We conclude there was no abuse of discretion in denying Mahdavi's motion for recusal. See In re Beverly Hills Bancorp, 752 F.2d 1334, 1341 (9th Cir. 1984) (recusal is appropriate when a reasonable person might question the judge's impartiality).

Mahdavi complains that his subsequent motion for reconsideration of the denial of recusal was considered and rejected by Judge Henderson. Mahdavi contends that Judge Henderson was without jurisdiction to consider another judge's ruling. We disagree. See Zipfel v. Halliburton Co., 832 F.2d 1477, 1481 (9th Cir. 1987) (one judge may review another judge's prior ruling), cert. denied, 487 U.S. 1245 (1988). Moreover, Mahdavi's motions for recusal and for reconsideration were so devoid of merit and so completely lacking in support that it was absolutely clear that Mahdavi could not prevail. Under these circumstances we find no error in Judge Henderson's decision to deny further consideration of Mahdavi's motion for recusal.

Mahdavi contends that the Office of Personnel Management ("OPM") failed to forward his name to a potential employer because of his national origin. The OPM in support of summary judgment produced evidence that (1) its ranking factors applied to all applicants; (2) the factors were not published at that time; (3) ten of the highest ranking eligible applicants' names, which did not include Mahdavi's, were forwarded, consistent with OPM's practice of sending seven to ten names; and (4) selection by the employer was limited by its own rules to the top three eligible applications, one of whom was actually hired. By this evidence, the OPM has amply met its burden of showing legitimate, non-discriminatory reasons for not forwarding Mahdavi's name. Mahdavi counters simply that he was evaluated on the basis of factors that had not been published. This does not show that OPM's nondiscriminatory reasons were merely a pretext for discrimination. We find no error in the entry of summary judgment. See T.W. Elec. Service v. Pacific Elec. Contractors Ass'n, 809 F.2d 626, 630 (9th Cir. 1987) (nonmoving party must set forth "specific facts" in opposition to summary judgment).

When Mahdavi refused to be deposed, a magistrate imposed sanctions of $313.56. Mahdavi contends that the magistrate did not have the authority or jurisdiction to impose sanctions. We have recently ruled to the contrary. See Maisonville v. F2 America, Inc., --- F.2d ----, No. 88-2797, slip op. 4345, 4350 (9th Cir. May 4, 1990). Accordingly, we reject Mahdavi's argument. Because the sanction here represents the reasonable costs incurred by the government in preparing for and attending the planned deposition proceeding, we affirm the imposition and the amount of the sanction.

AFFIRMED.

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This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by Ninth Circuit Rule 36-3