Marvin F. Koch, Plaintiff-appellant, v. U.S. Navy Public Works, et al., Defendants-appellees, 961 F.2d 216 (9th Cir. 1992)

MEMORANDUM^** 

Marvin Koch appeals pro se the district court's dismissal of his wrongful discharge action against his former employer, the United States Navy Public Works Center (PWC). The district court determined that Koch failed to state a claim pursuant to Fed. R. Civ. P. 12(b) (6). We review de novo, Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990), and we affirm.

Exhaustion of Administrative Remedies

Koch contends that the district court should have addressed the merits of his complaint against the PWC even though he has not exhausted administrative remedies. This contention lacks merit.

"Title VII specifically requires a federal employee to exhaust his administrative remedies as a precondition to filing suit." Vinieratos v. United States Dep't of Air Force Through Aldridge, 939 F.2d 762, 767-68 (9th Cir. 1991). The aggrieved employee is required "to elect one exclusive administrative remedy and to exhaust whatever remedy he chooses." Id. at 772. "Abandonment of the administrative process may suffice to terminate an administrative proceeding before a final disposition is reached, thus preventing exhaustion and precluding judicial review." Id. at 770.

Here, Koch filed a complaint with the Merit Systems Protection Board (MSPB) on July 18, 1988. On July 22, 1988, Koch filed a Title VII complaint with the district court. On September 26, 1988, Koch also filed a formal complaint with the Equal Employment Opportunity Commission (EEOC). All of Koch's complaints involved the same issues, and Koch initiated the district court and EEOC actions before the MSPB made a final decision on his appeal. Therefore, because Koch abandoned his initial forum for seeking review of his complaint, Koch failed to exhaust administrative remedies. Accordingly, judicial review of the merits of Koch's claims is precluded. See id. at 767-68, 770, 772.¹ 

Appointment of Counsel

Koch contends that the district court should have appointed counsel to represent him in his action. This contention lacks merit.

We review for an abuse of discretion a district court's decision on a motion for the appointment of counsel. McElyea v. Babbitt, 833 F.2d 196, 199-200 (9th Cir. 1987). In employment discrimination cases, the district court may appoint counsel "in such circumstances as the court may deem just." See Bradshaw v. Zoological Soc'y of San Diego, 662 F.2d 1301, 1318-19 (9th Cir. 1981). The district court must consider: "(1) the plaintiff's financial resources, (2) the efforts made by the plaintiff to secure counsel, and (3) whether the plaintiff's claim has merit." Id. at 1318 (citations omitted); see also Aldabe v. Aldabe, 616 F.2d 1089, 1093 (9th Cir. 1983) (under 28 U.S.C. § 1915(d), the district court may appoint counsel only if "exceptional circumstances" exist).

Here, the district court denied Koch's request for appointed counsel on the ground that there were no funds available for the court to appoint counsel in a civil action. Moreover, as discussed above, Koch's claims did not have merit, nor were there any exceptional circumstances. Accordingly, we conclude that the district judge did not abuse his discretion in denying Koch's request for the appointment of counsel. See Bradshaw, 662 F.2d at 1318-19; Aldabe, 616 F.2d at 1093.

AFFIRMED.