United States District Court, D. Hawaii
RICHARD J. SANDOWSKI, Plaintiff,
JOHN F. KELLY, ET AL., Defendants.
FINDINGS AND RECOMMENDATION TO DENY PLAINTIFF'S
REQUEST FOR APPOINTMENT OF COUNSEL 
Richard L. Puglisi United States Magistrate Judge.
the Court is Plaintiff's Request for Appointment of
Counsel Under the Civil Rights Act of 1964: 42 U.S.C. §
2000e-5(f)(1)(B). ECF No. 26. The Court finds this matter
suitable for disposition without a hearing pursuant to Rule
7.2(d) of the Local Rules of Practice of the United States
District Court for the District of Hawaii. After careful
consideration of the materials submitted by Plaintiff, the
Court FINDS and RECOMMENDS that Plaintiff's Request for
Appointment of Counsel be DENIED.
proceeding pro se, filed a Complaint on September
19, 2017, against the John F. Kelly, Secretary, Department of
Homeland Security (Transportation Security Administration);
Doug Rolefson, Supervisor Transportation Security Officer;
Genoa Lopez, Transportation Security Officer; Joan De La
Cruz, Supervisor Transportation Security Officer; Marc
Myakawa, Supervisor Transportation Security Officer; and Stan
Tadaki, Assistant Federal Security Director. ECF No. 1.
Plaintiff alleges that Defendants unlawfully retaliated
against him and terminated him based on his race and religion
in violation of Title VII of the Civil Rights Act of 1964.
See Id. Title VII prohibits employment
discrimination based on “race, color, religion, sex, or
national origin.” 42 U.S.C. § 2000e-2(a).
is no constitutional right to the appointment of counsel in
employment discrimination cases. Ivey v. Bd. of Regents
of Univ. of Ala., 673 F.2d 266, 269 (9th Cir. 1982).
Title VII authorizes the appointment of counsel “[u]pon
application by the complainant and in such circumstances as
the court may deem just . . . .” 42 U.S.C. §
2000e-5(f)(1). “The decision to appoint counsel is left
to the sound discretion of the district court.”
Johnson v. U.S. Treasury Dep't, 27 F.3d 415, 416
(9th Cir. 1994) (citations omitted). The court should
consider the following three factors in determining whether
to appoint counsel: “(1) the plaintiff's financial
resources; (2) the efforts made by the plaintiff to secure
counsel on his or her own; and (3) the merit of the
plaintiff's claim.” Id. at 416-17
Plaintiff's Financial Resources
Plaintiff has not demonstrated that he does not have any
financial resources. Plaintiff indicated in his Request for
Appointment of Counsel that he and his spouse are currently
employed; however, Plaintiff did not complete the requested
information regarding monthly income. See ECF No. 26
at 4. Without this information, the Court is unable to
determine whether Plaintiff's financial resources weigh
against or in favor of appointing counsel.
Plaintiff's Efforts to Obtain Counsel
the Court will consider whether Plaintiff made “what
can be considered a reasonably diligent effort under the
circumstances to obtain counsel.” Bradshaw v.
Zoological Soc'y of San Diego, 662 F.2d 1301, 1319
(9th Cir. 1981). Here, Plaintiff lists two attorneys in his
Request for Appointment of Counsel that he has contacted.
Id. at 3. However, Plaintiff does not provide any
information regarding when he contacted those attorneys or
the attorneys' response to his request for
representation. Id. While the Court recognizes that
Plaintiff has made some effort to retain counsel, the Court
notes that greater efforts could be made. Accordingly, the
Court finds that Plaintiff has not made a reasonably diligent
effort under the circumstances to obtain counsel. The Court
therefore finds that this factor weighs against appointing
The Merit of Plaintiff's Claim
Plaintiff must show that his claim has “some
merit.” Bradshaw, 662 F.2d at 1319. A person
claiming to be aggrieved by an unlawful employment practice
may file a charge with the United States Equal Employment
Opportunity Commission (“EEOC”). 42 U.S.C. §
2000e-5(b). In evaluating the merits of the claim, the court
should give “appropriate weight” to the
EEOC's determination regarding Plaintiff's claim.
Bradshaw, 662 F.2d at 1319-20. In instances where
the EEOC has found no reasonable cause, the court should ask
the plaintiff why he considers the EEOC's determination
to be in error. Id. at 1309 n.20 (citing Caston
v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th
Cir. 1977). “[A] negative EEOC determination, together
with patently frivolous rebuttals by the plaintiff, would
militate against appointment of a lawyer.” Jenkins
v. Chem. Bank, 721 F.2d 876, 880 (2d Cir. 1983); see
also Bradshaw, 662 F.2d at 1309 n.20 (“[A] finding
that the EEOC determination is supported by substantial
evidence in the investigative file and that plaintiff's
objections thereto are patently frivolous would weigh heavily
in the scales against appointing an attorney.” (quoting
Caston, 556 F.2d at 1309)). In addition to the
EEOC's determination, the court may consider the
allegations in Plaintiff's Complaint in determining
whether his claims have some merit. See Bradshaw,
662 F.2d at 1319.
Plaintiff attached to his Request for Appointment of Counsel
the Decision that he received from the EEOC. See ECF
No. 1 at 20-23. That Decision states that the EEOC concluded
that substantial evidence supported the Administrative
Judge's determination that Plaintiff had not proven
discrimination as alleged. Id. at 21.
Plaintiff's Request for Appointment of Counsel is made on
a pre-printed form, which includes a section that asks
Plaintiff for the reasons why he is questioning the
EEOC's determination. See ECF No. 26 at 3.
However, Plaintiff did not provide any information in that
section. Plaintiff's failure to complete this section
prevents the Court from determining why Plaintiff thinks that
the EEOC's determination was in error. After carefully
considering the EEOC's Decision and the allegations
contained in the Complaint, the Court concludes that the
third factor weighs against appointment of counsel.