                                                                             F I L E D
                                                                      United States Court of Appeals
                                                                              Tenth Circuit
                     UNITED STATES COURT OF APPEALS
                                                                               FEB 4 2000
                            FOR THE TENTH CIRCUIT
                                                                         PATRICK FISHER
                                                                                      Clerk

    ARMANDO C. VERA,

                Plaintiff-Appellant,

    v.                                                     No. 99-4069
                                                       (D.C. No. 97-CV-73)
    UTAH DEPARTMENT OF HUMAN                                 (D. Utah)
    SERVICES; YOUTH CORRECTIONS
    DIVISION, Utah Department of
    Human Services; WEBER VALLEY
    DETENTION, (MOWEDA);
    MILLCREEK YOUTH CENTER,

                Defendants-Appellees.




                            ORDER AND JUDGMENT              *




Before BRORBY , PORFILIO , and LUCERO , Circuit Judges.


         Armando C. Vera, appearing    pro se , appeals the district court’s denial

of his request for appointed counsel and the summary judgment dismissal of his



*
       The case is unanimously ordered submitted without oral argument
pursuant to Fed. R. App. P. 34(a)(2) and 10th Cir. R. 34.1(G). This order and
judgment is not binding precedent, except under the doctrines of law of the case,
res judicata, and collateral estoppel. The court generally disfavors the citation of
orders and judgments; nevertheless, an order and judgment may be cited under the
terms and conditions of 10th Cir. R. 36.3.
employment discrimination and hostile work environment complaint under Title

VII of the Civil Rights Act of 1964, 42 U.S.C. §§ 2000e to 2000e-17. Mr. Vera,

who is Hispanic, is employed by the State of Utah’s Department of Human

Services, Division of Youth Corrections. He has alleged that he was subjected to

repeated instances of racial insults and ridicule, that he lost supervisory

responsibilities, was denied overtime pay, made to take a racially discriminatory

examination in order to keep his job, and given dangerous work assignments

because of his national origin, race and color. We exercise jurisdiction pursuant

to 28 U.S.C. § 1291, and we reverse and remand for further proceedings because

the district court did not apply the correct legal standard in ruling on Mr. Vera’s

request for appointed counsel.

      Mr. Vera filed a request for appointed counsel contemporaneous with the

filing of his Title VII complaint. The record indicates that he attempted to locate

counsel to represent him both before and after filing his complaint. He was

briefly represented by counsel after he filed his complaint, but that attorney

withdrew at the outset of the discovery process, citing a heavy caseload, and

Mr. Vera continued pro se . Several months later, in the midst of numerous

discovery disputes between the parties, the district court denied Mr. Vera’s

request for appointed counsel because he had not filed an application to proceed

in forma pauperis under 28 U.S.C. § 1915, nor had he made any showing that he


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was indigent. The district court stated that, other than the provisions in § 1915

authorizing the appointment of counsel for indigent persons, the court was

“unaware of any other statutory authority entitling plaintiff to appointed counsel

for purposes of pursuing his Title VII” employment discrimination claims.

R. Vol. I Doc. 34 at 1. The district court later granted summary judgment in

favor of defendants on all of Mr. Vera’s claims.

       Mr. Vera raises numerous claims of error on appeal, one of which is that

the district court erred in refusing to appoint counsel. This claim of error is

properly before us now because a district court order denying a party’s request

for the appointment of counsel in a civil action cannot be appealed until the

underlying judgment is final.    See Cotner v. Mason , 657 F.2d 1390, 1391-92

(10th Cir. 1981) (per curiam).

       “A plaintiff asserting an employment discrimination claim has no

constitutional or statutory right to appointed counsel.”    Castner v. Colorado

Springs Cablevision , 979 F.2d 1417, 1420 (10th Cir. 1992). However, contrary

to the district court’s ruling in this case, Title VII does, in fact, provide the

court with discretionary statutory authority to appoint an attorney for a Title VII

complainant upon request “in such circumstances as the court may deem just.”

42 U.S.C. § 2000e-5(f)(1). Moreover, contrary to the district court’s ruling,




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“[a] litigant need not be destitute to qualify for appointed counsel under this

section.” Castner , 979 F.2d at 1421-22.

       “The discretion granted to the district court [under § 2000e-5(f)(1)] is

extremely broad.”    Castner , 979 F.2d at 1420. In light of the broad remedial

purpose of Title VII, a court must give “‘serious consideration’” to a Title VII

plaintiff’s request for appointed counsel.    Id. at 1421 (quoting Jenkins v.

Chemical Bank , 721 F.2d 876, 879 (2d Cir. 1983)).         Castner recognized

Congress’s “special concern with legal representation in Title VII actions,”

(quotation omitted) and cited to the House Committee Report’s explanation

for including a provision authorizing the appointment of counsel:

       “By including this provision in the bill, the committee emphasizes
       that the nature of Title VII actions more often than not pits parties of
       unequal strength and resources against each other. The complainant,
       who is usually a member of a disadvantaged class, is opposed by an
       employer who not infrequently is one of the nations’ major
       producers, and who has at his disposal a vast array of resources and
       legal talent.”

Id. (quoting H. R. Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972

U.S.C.C.A.N. 2137, 2148). Because Congress did not provide any mechanism

for paying any appointed counsel, however,         Caster also cautioned that the

“indiscriminate appointment of volunteer counsel to undeserving [discrimination]

claims will waste a precious resource and may discourage attorneys from donating

their time.” Id.


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       Castner identified the four factors courts should consider in making the

decision whether to grant a Title VII plaintiff’s request for appointed counsel:

(1) the plaintiff’s financial inability to afford counsel; (2) his diligence in

attempting to secure counsel; (3) the merits of his case; and (4) in close cases,

the plaintiff’s capacity to prepare and present the case without the aid of counsel.

Id. at 1421. Although “it is the plaintiff who must provide the court with this

information, the court should ensure an adequate record by providing ‘some

guidance to the plaintiff regarding the factors that it may consider . . . and the

showing that will be expected of plaintiff.’”        Darden v. Illinois Bell Tel. Co.   ,

797 F.2d 497, 501 (7th Cir. 1986) (quoting         Poindexter v. FBI , 737 F.2d 1173,

1184 (D.C. Cir. 1984)).

       In this case, the district court denied Mr. Vera’s request for appointed

counsel without any reference to § 2000e-5(f)(1) or to the         Castner factors.

Indeed, it failed to even recognize its authority under Title VII to appoint counsel.

It erroneously denied counsel solely on the basis of Mr. Vera’s failure to file an

application to proceed   in forma pauperis or to establish that he was indigent,

when, in fact, neither is required under § 2000e-5(f)(1). Although a plaintiff’s

financial condition is one of four relevant factors to be considered, the relevant

inquiry is not whether the plaintiff is indigent, but whether he is able “to hire

counsel and still meet his or her daily expenses.”        Castner , 979 F.2d at 1422.


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       “Ordinarily, a decision whether or not to appoint counsel in a Title VII

action will be reviewed only for an abuse of discretion.”         Id. at 1422-23. “Such

a review, however, presupposes the application of a reasoned and well-informed

judgment, guided by sound legal principles.”          Id. at 1423. Here, the district

court’s failure to apply the correct legal standards to Mr. Vera’s request for

appointment of counsel constituted an abuse of discretion.          See Koon v. United

States , 518 U.S. 81, 100 (1996) (“A district court by definition abuses its

discretion when it makes an error of law.”);         United States v. Lin Lyn Trading,

Ltd. , 149 F.3d 1112, 1116-17 (10th Cir. 1998) (holding that abuse of discretion

is established if the district court’s decision is based upon an error of law). In

Castner , we remanded the case because there was no indication the district court

considered the relevant factors under § 2000e-5(f)(1) and the record did not

contain sufficient evidence to permit an independent appellate determination.

979 F.2d at 1423. These same considerations dictate a remand in this case.

       There is nothing in the record with respect to Mr. Vera’s financial

condition, nor is there a sufficient record to indicate whether he made a

“reasonably diligent effort” to obtain counsel on his own.         Id. at 1422 (quotation

omitted). Mr. Vera does allege that he spent $3,500 attempting to hire counsel

and the record indicates that an attorney did assist him very briefly. As to the

third factor, an evaluation of the merits of Mr. Vera’s claims, we cannot say from


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our review of Mr. Vera’s complaint, his proposed amended complaint, or the

record on appeal that the district court’s error in ruling on the counsel request

was harmless. Cf. Brown-Bey v. United States    , 720 F.2d 467, 471 (7th Cir. 1983)

(holding that failure to rule on request for appointed counsel before dismissal of

action was harmless error because of clear lack of merit in appellant’s case).

      Under the third Castner factor, Mr. Vera need only demonstrate that his

claim “has some merit.”   Bradshaw v. Zoological Soc’y , 662 F.2d 1301, 1308

(9th Cir. 1981). The standard for merit in the context of motions for appointment

of counsel pursuant to § 2000e-5(f)(1) is lower than the standard in motions for

summary judgment.    See, e.g . Darden , 797 F.2d at 501 n.3; Poindexter , 737 F.2d

at 1186; Bradshaw , 662 F.2d at 1308. In this regard, we note that the Utah

Anti-Discrimination Division (UADD) substantiated Mr. Vera’s claims that he

was subjected to racial slurs and ridicule while working at the MOWEDA Youth

Home, one of the defendants in this case and an agency operated by the Utah

Department of Human Services, and that, despite the UADD’s issuance of a cease

and desist order, Mr. Vera has alleged that the same type of racial insults and

ridicule have continued and are ongoing even after his transfer to Millcreek Youth

Center, another facility operated by the Utah Department of Human Services.

In assessing the merits of a claim for purposes of § 2000e-5(f)(1), courts should

keep in mind that, in certain situations, a litigant’s claim might appear to lack


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merit only because the party was proceeding      pro se : if the party had a lawyer, he

would have known what facts to enunciate in order to survive summary judgment.

See Darden , 797 F.2d at 501 n.3 (noting that an unrepresented plaintiff is far less

likely to present his claims in their best light).

      Finally, with respect to the fourth factor--Mr. Vera’s ability to present the

case without counsel--the record indicates that the issues Mr. Vera attempted to

develop in this case were sufficiently complex that he might have benefitted from

the assistance of counsel. Mr. Vera raised numerous claims--indeed, the district

court’s order was 65 pages long--and the parties waged many long and intense

discovery battles, with numerous objections and motions to compel filed by

both sides.

      In summary, in light of the district court’s failure to apply the correct legal

standards, and our conclusion that this error was not harmless, the judgment must

be reversed and the case remanded to the district court for further proceedings.

Because of the possibility that the district court may, after applying the correct

legal standards, appoint counsel in this case, we do not express any opinion as to

the merits of Mr. Vera’s claims, nor do we address any of the remaining issues he

raises on appeal.




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      The judgment is REVERSED, and the case is REMANDED for further

proceedings.

                                             Entered for the Court



                                             Carlos F. Lucero
                                             Circuit Judge




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