Unpublished Disposition, 921 F.2d 279 (9th Cir. 1990)

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US Court of Appeals for the Ninth Circuit - 921 F.2d 279 (9th Cir. 1990)

Ali T. AGHA, Plaintiff-Appellant,v.SECRETARY OF ARMY, Defendant-Appellee.

No. 89-15213.

United States Court of Appeals, Ninth Circuit.

Submitted Nov. 2, 1990.* Decided Dec. 5, 1990.

Before SCHROEDER, WIGGINS and LEAVY, Circuit Judges.


MEMORANDUM** 

Ali T. Agha appeals the district court's denial of his motion for appointment of counsel in his employment discrimination case. An order denying appointment of counsel is immediately appealable as a collateral order exception to the final judgment rule. Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1305 (9th Cir. 1981). Therefore, we have jurisdiction of Mr. Agha's timely appeal under 28 U.S.C. § 1291 (1982), and we affirm.

The district court may appoint counsel for a Title VII plaintiff in such circumstances as the court deems just. 42 U.S.C. § 2000e-5(f) (1). The court must assess (1) the plaintiff's financial condition; (2) the plaintiff's efforts to secure counsel; and (3) whether the plaintiff's claims have merit. Bradshaw, 662 F.2d at 1318. We review the district court's refusal to appoint counsel for an abuse of discretion. Id.

In the underlying action, Mr. Agha argues that the information in his employee file upon which the denial of employment was based is false information. He argues that the true facts provide no legitimate support for a denial of employment and that the denial was therefore discriminatory. The district court denied Mr. Agha's motion to appoint counsel in the case because it found that Mr. Agha's claim lacked merit.1  A review of all the evidence, including the Army's Report of Investigation and an EEOC finding of no discrimination, supports the finding that Mr. Agha's case lacks merit. The District Court did not abuse its discretion. We AFFIRM.

 **

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

 *

The panel finds this case appropriate for submission without argument pursuant to Fed. R. App. P. 34(a) and 9th Cir.R. 34-4

 1

Mr. Agha filed a case closely related to this one in the Northern District of California in early 1986. No. C-85-20693-WAI. Mr. Agha's motion for appointment of counsel in that case was denied by the district court on September 28, 1986. This court affirmed that order in an unpublished opinion in 1988. Agha v. Secretary of the Army, No. 86-2710, Slip Op. (9th Cir. May 24, 1988). In the interim, this case was filed in the Eastern District of California on August 20, 1987, stating substantially the same facts and arguments as in the earlier case. No. CIV-S-87-1385-EJG-JFM. When the district judge ordered a transfer of venue to the Northern District in this case, the judge wrote:

The court's review of these complaints discloses that all of these matters arise from the same nucleus of operative fact--the circumstances surrounding termination of plaintiff's employment at the Defense Language Institute and his unsuccessful attempts to gain reinstatement to his position there.... The only difference between those actions and the instant one is that this one covers a slightly different time period. Under these circumstances the filing of the instant action here in the Eastern District of California not only smacks of forum shopping, it counsels for transfer in the interests of justice to the potential witnesses and to preserve judicial economy.

Order Granting Defendant's Motion to Change Venue, Agha v. Secretary of the Army (E.D. Cal. July 18, 1988) (No. S-87-1385-EJG).