216 F.3d 571 (7th Cir. 2000)
Barbara J. Klein,    Plaintiff-Appellant,v.Sidney G. Perry, individually and as  Manager of the  Employee/Labor Relations Department of  the Human  Resources Administration, and Cheryl  Sullivan,  individually and as Secretary of the  Indiana Family  and Social Services Administration,    Defendants-Appellees.
No. 98-3158
In the  United States Court of Appeals  For the Seventh Circuit
Submitted March 8, 2000Decided June 8, 2000

Appeal from the United States District Court  for the Southern District of Indiana,  Indianapolis Division.  No. 96 C 819--Richard L. Young, Judge.
Before Fairchild, Manion, and Rovner,  Circuit Judges.
Rovner, Circuit Judge.


1
In 1996 Barbara  Klein filed this suit under 42 U.S.C.  sec. 1983, claiming that the defendants  suspended her from work for 30 days and  involuntarily transferred her from her  position with the Human Resources  Department of the Family and Social  Services Administration (FSSA) to a  position with the Division of Mental  Health in retaliation for her exercise of  her First Amendment right to freedom of  speech. The defendants countered by  arguing that Klein's claim was precluded  by a prior decision of the Indiana State  Employees' Appeals Commission (SEAC). The  district court agreed and granted the  defendants' motion for summary judgment.  Klein appeals.


2
As did the district court, we accord  preclusive effect to the SEAC's factual  findings. Federal courts give preclusive  effect to the findings of state  administrative tribunals in subsequent  actions under sec. 1983. See University  of Tennessee v. Elliott, 478 U.S. 788,  799 (1986) ("[W]hen a state agency  'acting in a judicial capacity . . .  resolves disputed issues of fact properly  before it which the parties have had an adequate opportunity to litigate,'  federal courts must give the agency's  factfinding the same preclusive effect to  which it would be entitled in the State's  courts.") (citation omitted); Crot v.  Byrne, 957 F.2d 394, 396 (7th Cir. 1992).  We believe the Indiana state courts would  find that an issue of fact litigated and  determined in an agency's decision is  preclusive between the parties in a  subsequent action, even though a  different claim is involved. See Fruehauf  Corp. v. Review Bd. of the Indiana  Employment Security Div., 269 N.E. 2d  184, 189 (Ind. App. 1971); see also  Flowers v. Carson, 917 F. Supp. 614, 619  (S.D. Ind. 1996); Kelly v. Municipal Ct.  of Marion Co., 852 F. Supp. 724, 739  (S.D. Ind. 1994), aff'd 97 F.3d 902 (7th  Cir. 1996).


3
Accordingly, the following statement of  facts summarizes the facts found by the  SEAC. Klein was employed as a personnel  officer in the Human Resources Section of  the FSSA. On or about September 25, 1995,  Klein received a telephone call from a  caseworker at the Marion County Division  of Family and Children (DFC) who alleged  some problems in the Child Protective  Services (CPS) division and expressed  fear of retaliation and dismissal if she  disclosed those problems. Klein and  fellow officer Fred Schute, who had been  hired only recently, met with and  interviewed the DFC caseworker, as well  as a former colleague of the caseworker  who had been dismissed from her  employment with DFC. Klein and Schute met  several times that week and reviewed many  documents that had been copied by the  caseworkers from the CPS division.


4
Klein updated her supervisor Sidney  Perry, the Director of Employee/Labor  Relations for FSSA, on the  investigation's progress on a daily,  almost hourly, basis. By Friday,  September 29, 1995, Perry had determined  that some expertise in CPS matters was  needed to review the records brought in  by the two complaining caseworkers. Perry  gave Klein the names of two investigators  whom he asked to be assigned to the case  and told her to call the Acting Director  of Marion County DFC to set up a meeting  that day with the two investigators to  officially review the records, files, and  documents. Upon examining staffing  reports, Klein discovered that the two  investigators whom Perry had designated  to review the documents were themselves  supervisors in the very same CPS division  of Marion County DFC. Thus, Klein  believed there was a conflict of interest  in having those investigators review the  documents that alleged wrongdoing by CPS  supervisors. Klein testified that she was  also concerned that Perry himself may  have had a conflict of interest because  he had previously advised Marion County  DFC to dismiss one of the complaining  caseworkers.


5
Klein had a doctor's appointment  scheduled for the afternoon of September  29, 1995, for which she had already been  given permission to leave work. Prior to  leaving for that appointment, Klein tried  to meet with Perry or his supervisor,  James Ladd, but learned that both were in  meetings. She then asked Schute to help  her carry her notes regarding the  investigation and the CPS caseworkers'  documents to the Office of the General  Counsel of FSSA, Rachel McGeever, for  safekeeping. McGeever is the person  designated to receive allegations of  ethical problems. But McGeever was not in  her office, nor was her Deputy General  Counsel, Marianne Wilson. Klein then  recognized another attorney walking in  the hallway and asked him if he had a  place where confidential documents could  be safeguarded. The attorney, William  Bogard, replied that he did and placed  the documents in his office while he  searched for the key to a locked file  cabinet. Klein left for her doctor's  appointment, and Schute returned to his  office in Labor/ Employee Relations.


6
Upon returning to his office, Schute saw  Perry and, recalling that Klein had been  looking for him earlier, told Perry the  location of the documents. Schute  accompanied Perry back to Bogard's  office, where they retrieved the  documents. When Klein telephoned Schute  from her doctor's office later that  afternoon and learned that the documents  had been brought back to the  Labor/Employee Relations office, she  instructed Schute to return the documents  to the Office of General Counsel. He did  so, and this time found McGeever back in  her office; he turned over the documents  to her and requested that she safeguard  them. Later that day, Perry learned that  the documents had been delivered to the  Office of General Counsel again, and for  a second time he retrieved them and took  them back to the Employee/Labor Relations  office.


7
The next Monday, October 2, 1995, Klein  received written notice of a possible  disciplinary action charging her with  gross misconduct, insubordinate behavior,  disobeying an order, failure to follow  instructions, and interfering with the  completion of an investigation. The  notice stated that a pre-deprivation  hearing would be held at 2:30 that  afternoon. At the hearing, Klein  expressed her concerns about ethical  violations in the investigation and  explained her reasons for removing the  documents. After hearing Klein's  explanation, the hearing officer imposed  a 30-day suspension without pay. Once  Klein had served the suspension, she was  transferred to the Division of Mental  Health at Perry's instigation. Klein  filed a grievance challenging her  punishment, but this was denied. She  appealed the denial to the SEAC.


8
Following an evidentiary hearing at  which Klein was represented by counsel,  the SEAC concluded that the disciplinary  actions against her were warranted. The  SEAC found that Klein did not explain to  Schute her concerns about potential  ethical dilemmas in allowing employees  from the CPS division of the Marion  County DFC to review the documents;  concerns that someone might destroy or  tamper with the documents; or concerns  about Perry's involvement in the decision  to dismiss one of the caseworkers who  instigated the present complaint.


9
The FSSA policy on ethics provides in  part that "[a]ll staff have a  responsibility to report perceived or  real ethical violations to a supervisor  or directly to the Ethics Commission."  According to the SEAC, Klein did not  report any real or perceived ethical  violations to her co-workers, her  supervisor, or the Ethics Commission.  Rather, Klein removed documents in an  ongoing investigation from the offices of  the Employee/Labor Relations Division to  prevent the employees from DFC from  having access to them. Klein then  instructed a co-worker to remove the  documents a second time. These actions  directly violated Perry's order to allow  the two DFC supervisors to review the  documents. Klein did not prove the  urgency that induced her actions, nor  that this was the only method available  to alleviate her concerns. Thus, the SEAC  concluded that the FSSA had just cause to  suspend Klein for her actions.


10
Klein then filed suit directly in  federal court under sec. 1983, alleging  that the defendants retaliated against  her for exercising her right to free  speech, and requesting damages and  injunctive relief. The defendants moved  for summary judgment. In granting the  defendants' motion, the court  acknowledged its obligation to give  preclusive effect to the SEAC's findings  of fact under Elliott. But the court also  observed that, because Klein did not  raise the First Amendment defense before  the SEAC, the agency's conclusion that  Klein did not inform her co-workers of  her ethical concerns did not preclude the  district court from considering whether  she had engaged in protected speech.


11
The court first concluded that Klein had  not engaged in "speech" as contemplated  by the First Amendment. According to the  SEAC's findings, Klein had not  communicated her concerns in either  verbal or written form to any of her co-  workers or the members of the Ethics  Commission. The court explicitly rejected  Klein's argument that the gesture of  handing documents over to the Ethics  Commission for safekeeping expressed  Klein's ethical concerns about the  matter. Under Texas v. Johnson, 491 U.S.  397, 404 (1989), the court explained,  there was no evidence that Klein intended  her conduct to convey a message, nor were  there facts suggesting that others who  witnessed her conduct inferred such a  message. The court then opined that, even  assuming that Klein's removal of the  files was protected expression, the state  nonetheless could constitutionally  regulate this expression because the  restrictions were narrowly drawn and  furthered a substantial governmental  interest under Clark v. Community for  Creative Non-Violence, 468 U.S. 288, 294  (1984). Finally the court determined that  Klein's claim that she was retaliated  against for "voicing ethical concerns to  fellow employees" was estopped by the  SEAC's finding that she did not inform  her co-workers of her concerns.


12
We are concerned that the district court  was not as thorough as it should have  been in evaluating Klein's claim. The  court's entire First Amendment analysis  runs little more than one page, cites  only two cases, and glosses over the  communicative nature of Klein's actions.  Although the court appropriately cited  Texas v. Johnson, which outlines the test  for determining when conduct rises to the  level of "speech" under the First  Amendment, the court did not analyze  Klein's circumstances under that test.  Instead the court held in conclusory  fashion that Klein had not shown any  evidence of communicative intent or  effect. This unsupported conclusion is  insufficient to permit this court to  engage in meaningful review. The court  must consider all aspects of her actions.  Here, she did not merely transfer files  from one office to another for  safekeeping. She purposefully moved the  files out of the Labor/Employee Relations  office and into the office of McGeever,  the person designated to receive  allegations of ethical problems. The  choice of that destination may express a  concern with ethics just as an employee  sending a file to the FBI or U.S.  Attorney's Office may be seen as  expressing a concern over criminal  activity in her office. Additionally,  although not argued by Klein's counsel  before the district court, we note that  Klein clearly did engage in protected  speech at the time she stated her case  before the hearing officer. It was only  after testifying before the hearing  officer (and Perry) that Klein suffered  the adverse employment actions she  challenges here. Perhaps the nature of  Klein's speech at the pre-deprivation  hearing would be a fruitful avenue of  inquiry to explore upon remand and at the  least it may assist in interpreting the  nature of her conduct.


13
Moreover, the case that the district  court cited to analyze the state's  punishment of employee speech is not on  point. The case relied on by the district  court, Clark, dealt with time, place and  manner restrictions on the use of a  public forum, not with protected speech  by public employees. Surprisingly, the  court here did not cite any of the cases  specifically addressing protections for  speech by public employees. See, e.g.,  Pickering v. Bd. of Education, 391 U.S.  563 (1968); Connick v. Meyers, 461 U.S.  138 (1983); Wright v. Illinois Dep't of  Children & Family Servs., 40 F.3d 1492  (7th Cir. 1994). We do not have  sufficient facts to determine the outcome  of the Pickering test at this time.  Accordingly, we remand this case with  instructions to the district court to  further consider whether Klein engaged in  activity that the First Amendment  jurisprudence considers speech. Should  the court determine that she did engage  in speech, then it must consider under  the Pickering line of cases whether that  speech was protected by the First  Amendment. Finally, we observe that both  Klein and the district court surely will  benefit from having appointed counsel  represent Klein on remand.


14
The judgment of the district court is  VACATED and this case is REMANDED for further proceedings consistent with this  opinion.


15
MANION, Circuit Judge, dissenting.


16
While  I agree with my colleagues that our  review of this case could be enhanced by  a further statement from the district  court of its reasons for granting summary  judgment, this case can be decided as it  stands on at least two grounds  established on the present record.


17
First, because the First Amendment  protects the exchange of ideas and not  simple actions, Klein was required to  create a genuine issue as to whether  moving files between offices was  expressive conduct. Smith v. Goguen, 415  U.S. 566, 586 (1974) (the First Amendment  "applies to speech and not to conduct  without substantial communicative intent  and impact."). Courts have held that a  variety of acts constitute expressive  conduct--from burning draft cards and  flags to wearing armbands--but there  appears to be no precedent that says  moving files from one room to another  constitutes expressive conduct. Of  course, the test does not depend solely  on the type of action involved, but on  the intent of the actor and the  likelihood that others will perceive the  message which inheres in the action.  Texas v. Johnson, 491 U.S. 397, 404  (1989) ("In deciding whether particular  conduct possesses sufficient  communicative elements to bring the First  Amendment into play, we have asked  whether an intent to convey a  particularized message was present, and  whether the likelihood was great that the  message would be understood by those who  viewed it."). Klein concedes in her  appellate brief that her intent in moving  the documents was not expressive, but  rather protective--she was afraid that  the files would be destroyed. App. Br. at  10. And unlike wearing an armband or  burning a flag, it seems unlikely that  anyone who saw Klein and Schute carrying  files--an act which regularly occurs in  most office settings--would have  perceived this conduct as conveying any  message, much less a statement addressing  matters of public concern. This brings us  to Klein's next hurdle.


18
Even if we assume that moving files can  be expressive conduct, Klein was then  required to show that there was a genuine  issue concerning whether: (1) the speech  addressed a matter of public concern; and  (2) any First Amendment interests in the  matter were not outweighed by the state's  interests in promoting the efficiency of  its public services.  Pickering v. Board  of Educ., 391 U.S. 563 (1968); Bonds v.  Milwaukee County, 207 F.3d 969, 979 (7th  Cir. 2000). Assuming further that Klein's  conduct addressed a matter of public  concern rather than her own interests,  she didn't make the showing as required  at the summary judgment stage that this  interest is greater than the Social  Services Administration's need to have  the files available for examination by  investigators and its need for  efficiency, discipline, and harmony in  the work environment. See Kokkinis v.  Ivkovich, 185 F.3d 840, 845 (7th Cir.  1999).


19
Although Klein is pro se on appeal, she  was represented by counsel before the  district court. Thus she had adequate  opportunity to make her case by  presenting facts showing that what  appeared to be rather routine conduct was  instead protected speech involving  matters of public concern. No doubt had  she presented the same bundle of files to  the offices of the FBI or the U.S.  Attorney, a full explanation of reasons  would be necessary before acceptance by  either agency. Because Klein failed to  create genuine issues as to whether her  actions were expressive conduct or  whether her interests outweighed those of  the state, and because either defect is  fatal to her case, summary judgment was  proper.


20
That being said, although the case will  be remanded for further proceedings, it  is not necessary that the district court  appoint counsel on remand. Civil  litigants have neither a constitutional  nor statutory right to appointed counsel.  Zarnes v. Rhodes, 64 F.3d 285, 288 (7th  Cir. 1995). While 28 U.S.C. sec.  1915(e)(1) permits district courts to  assign counsel to the indigent, Klein  does not claim indigence, making section  1915(e)(1) inapplicable. As to other  bases for appointing counsel, those are  left to the sound discretion of the trial  court, and we should not invade this  domain lightly. Id. Furthermore, before  the district court can exercise its  discretion to appoint counsel, it should  consider whether: (1) the litigant seeks  an appointment of counsel; (2) the  litigant made a reasonable attempt to  again secure private counsel; (3) other  measures short of appointing counsel are  appropriate; (4) the case is so difficult  that it merits such an appointment; and  (5) an appointment of counsel would  provide a substantial benefit to the  court or the parties. Luttrell v. Nickel,  129 F.3d 933, 936 (7th Cir. 1997); Donald  v. Cook County Sheriff's Dept., 95 F.3d  548, 554 n.1 (7th Cir. 1996); Zarnes, 64  F.3d at 288. The record does not indicate  that any of these factors compels the  appointment of counsel in this case.  Rather, from Klein's pro se brief we see  that she is cognizant of the applicable  cases and the relevant facts, and her  case fails simply because she has no  claim, and not because of some  shortcoming in the litigation process. As  noted, before the district court Klein  was represented by two attorneys. And the  mere fact that Klein's case could not  withstand a motion for summary judgment  should not call into question their  competence. But even if there were a  legitimate reason for appointing counsel,  I would leave that decision entirely to  the sound discretion of the district  court.

