                      United States Court of Appeals,

                              Eleventh Circuit.

                                  No. 96-8212

                           Non-Argument Calendar.

                  Donald A. VINING, Plaintiff-Appellant,

                                        v.

 Marvin T. RUNYON, Jr., Postmaster General, U.S. Postal Service,
Defendant-Appellee.

                               Nov. 20, 1996.

Appeal from the United States District Court for the Middle
District of Georgia. (No. 3:94-CV-64-DF), Duross Fitzpatrick, Chief
Judge.

Before KRAVITCH, DUBINA and BARKETT, Circuit Judges.

       PER CURIAM:

       Donald Vining, proceeding pro se, appeals the district court's

order granting appellee's motion for summary judgment on his

complaint against the Postmaster General of the United States

alleging termination on the basis of race and in retaliation for

prior EEOC activity, in violation of Title VII of the Civil Rights

Act, 42 U.S.C. § 2000e et seq. ("Title VII").               Vining claims that

the district court erred when it considered information obtained ex

parte and in camera in deciding the merits of this motion.                Vining

also    appeals     the   district's    order     denying    his   motion     for

appointment of counsel.

                                        I.

       In   order    to   demonstrate    that    similarly    situated      white

employees     who     committed    nearly       identical    misconduct      were

disciplined less severely than he was, Vining moved to compel the

production of the personnel records of four white former co-workers
who, like himself, had either absence or tardiness problems.

Appellee      opposed    this     motion,    claiming         that    the    information

contained in the records was protected by the Privacy Act, 5 U.S.C.

§    552a.     Initially,        the   district       court    denied       the   request,

concluding that Vining had not demonstrated that any previously

undisclosed information in these files was directly relevant to the

case.

       After appellee moved for summary judgment, Vining again moved

to compel the production of the personnel files of his co-workers

and also requested the production of his own personnel file.                              The

district      court    ordered    that     all   of    these    personnel         files    be

produced for an in camera review by the court, specifically noting

that    the   files     "are    important    for      purposes       of   comparison       to

[Vining's] case."        After reviewing the evidence contained in these

files, the district court granted appellee's motion for summary

judgment and subsequently denied Vining's motion to compel as moot.

       In its order granting summary judgment, the district court

noted that the decision was made "after reviewing [the] evidence

[contained in the personnel files] and considering the briefs filed

by   the     parties."       Moreover,     in    finding      that    Vining      was     not

similarly situated to white employees who had been retained, the

district court specifically referenced the personnel records and

relied on evidence obtained during the in camera inspection of

these files.          For example, it relied on the number of absences

documented      in     one     personnel    record      and    noted      that     another
"personnel record is devoid of any disciplinary letters."1

         Vining claims that the district court erred when it refused

to appoint him counsel and when it considered facts obtained during

its ex parte, in camera examination of the personnel files in

deciding the merits of his Title VII claim.      Because we find no

abuse of discretion in the denial of Vining's request for counsel,

we affirm that order of the district court. 2    We therefore limit

our discussion to the district court's use of information obtained

during its ex parte, in camera review of the personnel files.

                                  II.

         This Court has recognized that "[o]ur adversarial legal

system generally does not tolerate ex parte determinations on the

merits of a civil case."    Application of Eisenberg, 654 F.2d 1107,

1112 (5th Cir. Unit B Sept. 1981).3       The right to due process

"encompasses the individual's right to be aware of and refute the

evidence against the merits of his case."     Id.;   see also Lynn v.

Regents of the University of California, 656 F.2d 1337, 1346 (9th

Cir.1981) (holding that in camera review of tenure file for purpose

     1
      This information is not contained in the parties' statement
of facts nor can it otherwise be located in the record.
     2
      In denying Vining's request, the district court relied on
the EEOC's conclusion that he had not raised a prima facie case
of discrimination and Vining's exceptional ability to understand
and present his own claims. These are appropriate factors to
consider in determining whether or not to appoint counsel in a
Title VII case and, taken together, provide ample support for the
district court's decision. Hunter v. Dept. of the Air Force
Agency, 846 F.2d 1314, 1317 (11th Cir.1988) (per curiam). We
therefore find no abuse of discretion.
     3
      The Eleventh Circuit, in the en banc decision of Bonner v.
City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as
precedent decisions of the former Fifth Circuit rendered prior to
October 1, 1981.
of assisting factual determination in Title VII action violates due

process), cert. denied, 459 U.S. 823, 103 S.Ct. 53, 74 L.Ed.2d 59

(1982).

           Although     a    judge     freely    may   use    in     camera,    ex    parte

examination        of   evidence       to   prevent    the    discovery        or    use   of

evidence, consideration of in camera submissions to determine the

merits of litigation is allowable only when the submissions involve

compelling national security concerns or the statute granting the

cause of action specifically provides for in camera resolution of

the    dispute.             Abourezk     v.     Reagan,      785     F.2d   1043,      1061

(D.C.Cir.1986), aff'd by an equally divided Court, 484 U.S. 1, 108

S.Ct. 252, 98 L.Ed.2d 1 (1987).                    Neither of these exceptional

circumstances is present in this case. Therefore, we conclude that

the district court erred in using information obtained in its ex

parte, in camera examination of the personnel files to judge the

merits of Vining's Title VII claim, and we remand the case for a

reconsideration of Vining's summary judgment motion.

       On remand, the district court must first rule on Vining's

motion to compel.             This court has held that it is error for a

district court to decide a summary judgment motion before ruling on

an outstanding motion to compel.4                 Snook v. Trust Co. of Georgia

Bank       of   Savannah, N.A.,         859     F.2d   865,    871    (11th     Cir.1988)

(rejecting argument that grant of summary judgment made discovery


       4
      Although Vining acknowledged that his second motion to
compel was made after the discovery period had ended, the court
entertained the motion by ordering the requested files submitted
in camera. The court's subsequent order vacating the request as
moot further indicates that the motion remained outstanding at
the time summary judgment was granted.
request    moot).       A    premature       decision       on    summary     judgment

impermissibly "deprive[s] the plaintiffs[ ] of their right to

utilize the discovery process to discover the facts necessary to

justify their opposition to the motion." Id. Because the district

court has already determined that the files are "important for

purposes    of    comparison,"      it     need   only     determine     whether   the

information      contained    in     the    files    is,    as    appellee     claims,

protected by the Privacy Act.

     If the district court finds that the information in the files,

or at least some portion of it, is not protected by the Privacy

Act, the court must provide Vining with the appropriate materials

and allow him to review the materials and to file any necessary

opposing affidavits.        See Snook, 859 F.2d at 871.            If, on the other

hand,     the    district    court       concludes    the     materials      are   not

discoverable, it must reconsider appellee's summary judgment motion

without relying on the information contained in these files.                       See

Association for Reduction of Violence v. Hall, 734 F.2d 63, 67 (1st

Cir.1984) (reversing grant of summary judgment and remanding for

ruling     on    the   motion      "without       relying    on    any      privileged

materials").

                                          III.

     The district court's order granting appellee's motion for

summary judgment is therefore VACATED, and this case is REMANDED to

the district court for a ruling on appellant's motion to compel and

a reconsideration of appellee's motion for summary judgment.
