F I L E D
United States Court of Appeals
Tenth Circuit
PUBLISH
May 3, 2006
UNITED STATES COURT OF APPEALS Elisabeth A. Shumaker
Clerk of Court
TENTH CIRCUIT
MICHAEL J. NELSON,
Plaintiff-Appellant,
v. No. 05-3156
THE BOEING COMPANY,
Defendant-Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS
(D.C. NO. 03-CV-1280-MLB)
Submitted on the briefs. *
Lawrence W. Williamson, Jr. of Shores Williamson and Ohaebosim, LLC,
Wichita, Kansas for Plaintiff-Appellant.
Timothy B. Mustaine and Jeff P. DeGraffenreid of Foulston Siefkin LLP,
Wichita, Kansas for Defendant-Appellee.
Before McCONNELL , ANDERSON , and TYMKOVICH , Circuit Judges.
McCONNELL , Circuit Judge.
*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The case is
therefore submitted without oral argument.
The general rule in civil cases is that the ineffective assistance of counsel is
not a basis for appeal or retrial. MacCuish v. United States , 844 F.2d 733, 735
(10th Cir. 1988). If a client’s chosen counsel performs below professionally
acceptable standards, with adverse effects on the client’s case, the client’s remedy
is not reversal, but rather a legal malpractice lawsuit against the deficient
attorney. Id. at 735-36; Link v. Wabash R.R. Co. , 370 U.S. 626, 634 n.10 (1962).
Recognizing this rule, Plaintiff-Appellant Michael J. Nelson asks this Court to
craft an exception for Title VII plaintiffs based on the language of 42 U.S.C. §
2000e-5(f)(1). He further claims that because his trial counsel was ineffective,
we should reverse the district court’s grant of summary judgment in favor of the
Defendant-Appellee, The Boeing Company (“Boeing”). We conclude that Title
VII does not create a statutory right to the effective assistance of counsel, and
AFFIRM the district court’s decision.
I. Background
Mr. Nelson, an engineer of Iranian descent, was employed by Boeing from
1996 until he was laid off in 2002 as part of a reduction in force. He filed this
lawsuit in 2003, asserting that Boeing discriminated against him on the basis of
his race, national origin, sex, and disability, and in retaliation for previous
complaints about harassment, in violation of Title VII of the Civil Rights Act of
1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in
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Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and similar Kansas statutes.
After filing this lawsuit, Mr. Nelson filed a motion to proceed in forma pauperis
and for appointment of counsel. The district court granted Mr. Nelson’s motion
to proceed in forma pauperis but denied his request for appointed counsel.
Mr. Nelson ultimately retained counsel and was represented throughout the
proceedings before the district court. However, Mr. Nelson claims that his
attorney never propounded discovery on Boeing, even though Boeing served
discovery requests on Mr. Nelson. On October 22, 2004, Boeing filed a motion
for summary judgment. Mr. Nelson’s counsel filed a brief response citing few
cases. The district court entered summary judgment in favor of Boeing on March
1, 2005. Represented by new counsel, Mr. Nelson filed a timely appeal, claiming
that he is entitled to reversal because his counsel rendered ineffective assistance.
II. Discussion
Although every client who engages a lawyer has a right of effective
assistance of counsel in the sense that legal services falling below acceptable
professional standards may give rise to tort liability, the term “effective assistance
of counsel” is generally reserved for contexts in which the lawyer’s deficient
performance provides a basis for reversal on appeal or collateral review. In
criminal cases, the Supreme Court has found that right implicit in the Sixth
Amendment’s guarantee that “[i]n all criminal prosecutions, the accused shall
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enjoy the right . . . to have the Assistance of Counsel for his defense.” U.S.
Const. amend. VI; see Strickland v. Washington , 466 U.S. 668, 685-86 (1984). In
civil cases, the right can arise from the Due Process Clause of the Fifth
Amendment, but the only context in which courts have recognized a constitutional
right to effective assistance of counsel in civil litigation is in immigration cases.
See Ponce-Leiva v. Ashcroft , 331 F.3d 369, 381-82 (3d Cir. 2003) (“[A]liens, like
criminal defendants and unlike the parties in normal civil disputes, may obtain
relief from the ineffective assistance of counsel”); Mejia Rodriguez v. Reno , 178
F.3d 1139, 1146 (11th Cir. 1999) (noting that aliens have a right to effective
assistance of counsel under the Due Process Clause because deportation
proceedings implicate an alien’s liberty interest). Mr. Nelson does not argue that
the Due Process Clause guarantees Title VII plaintiffs the right to the effective
assistance of counsel, but instead contends that such a right is embodied in Title
VII itself. We disagree.
Title VII grants litigants a statutory right to request appointed counsel at
court expense. The statute provides, in pertinent part:
Upon application by the complainant and in such circumstances as
the court may deem just, the court may appoint an attorney for such
complainant and may authorize the commencement of the action
without the payment of fees, costs, or security.
42 U.S.C. § 2000e-5(f)(1). Mr. Nelson claims that this statutory right to request
appointment of counsel creates a corresponding statutory right to the effective
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assistance of counsel analogous to that arising from the Sixth Amendment. Citing
McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970), he argues that “the right
to counsel is the right to the effective assistance of counsel.”
Mr. Nelson’s argument, however, misses important differences between
Title VII and the Sixth Amendment. The right to counsel, and to the effective
assistance of counsel, is critical in criminal cases because of the grave and
irremediable consequences of a criminal conviction. See Powell v. Alabama , 287
U.S. 45, 69 (1932) (noting that without effective legal representation, a defendant
“faces the danger of conviction”). Similar concerns, based on the “exceptional
life-altering character of immigration proceedings,” explain the extension of the
right to the immigration context. Ponce-Leiva , 331 F.3d at 381; see Bridges v.
Wixon , 326 U.S. 135, 154 (1945).
By contrast, the Supreme Court has repeatedly held civil litigants
“accountable for the acts and omissions of their chosen counsel,” Pioneer Inv.
Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 397 (1993), and has
declined to “visit[] the sins of [a] plaintiff’s lawyer upon the defendant,” Link ,
370 U.S. at 634 n.10. It does not disparage the importance of rights protected by
Title VII to recognize that the consequences of bad lawyering in a Title VII case
are less grave than wrongful incarceration or deportation. Moreover, a Title VII
plaintiff who loses because his attorney’s performance was deficient can file a
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legal malpractice lawsuit to recoup the damages he would have been awarded in
the Title VII case, including damages to compensate him for the loss of equitable
relief such as reinstatement. See Bell v. Eastman Kodak Co. , 214 F.3d 798, 802
(7th Cir. 2000); Sanchez v. U. S. Postal Serv. , 785 F.2d 1236, 1237 (5th Cir.
1986) (per curiam). A legal malpractice award, however, cannot release a
convicted defendant from jail or absolve him of the stigma of a criminal
conviction, nor can it enable an alien to remain in the United States. These are
more than just differences in degree.
Mr. Nelson argues, in effect, that Title VII’s provision for appointed
counsel must logically entail a right to “effective assistance” of counsel. But this
argument would swallow the rule that parties are responsible for the acts of their
attorneys. Under 28 U.S.C. § 1915(e)(1), district courts have general authority to
appoint counsel for indigent litigants; yet no one would argue this means that
deficient legal representation should be a basis for reversal on appeal in all civil
cases. To be sure, the right to request counsel under Title VII extends to a
broader class of litigants. Unlike § 1915(e)(1), § 2000e-5(f)(1) is not limited to
those “unable to afford counsel.” But Congress’s decision to make appointed
counsel available, in the discretion of the court, to a wider class of litigants does
not imply that Congress intended to abrogate the long-standing principle of not
recognizing a right to the effective assistance of counsel in civil cases. If
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Congress had intended to extend an equivalent of the Sixth Amendment guarantee
of effective assistance of counsel to Title VII cases, upending the ordinary rule in
civil cases, Congress would have done so in far more explicit terms.
The inclusion of a specific right to request counsel does evince “Congress’s
‘special . . . concern with legal representation in Title VII actions.’” Castner v.
Colo. Springs Cablevision , 979 F.2d 1417, 1421 (10th Cir. 1992) (quoting Jenkins
v. Chem. Bank , 721 F.3d 876, 879 (2d Cir. 1983)). However, Congress was not so
concerned as to create an actual right to appointed counsel in Title VII cases. See
id. at 1420 (“A plaintiff asserting an employment discrimination claim has no
constitutional or statutory right to appointed counsel.”). The Sixth Amendment
guarantees the right to counsel in criminal cases and withholds from courts “the
power and authority to deprive an accused of his life or liberty unless he has or
waives the assistance of counsel.” Johnson v. Zerbst , 304 U.S. 458, 463 (1938).
Title VII, by contrast, does not create a right to appointed counsel, even for the
indigent, but solely the right to request it. Castner, 979 F.2d at 1420. District
courts have broad discretion to decide whether to appoint counsel or to require a
Title VII litigant to retain private counsel or proceed pro se . Id. By leaving the
appointment of counsel to the discretion of the court, Congress contemplated that
some plaintiffs would have to represent themselves. It is hard to imagine that
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Congress intended to create a right to effective assistance of counsel when it
understood that many Title VII plaintiffs would have no counsel at all.
As noted above, this holding does not leave a Title VII plaintiff without
recourse. If Mr. Nelson’s attorney mishandled his case, he may have a remedy
against his attorney in the form of a legal malpractice lawsuit. Mr. Nelson’s
remedy, however, is not against Boeing and cannot take the form of reversing the
district court’s grant of summary judgment.
For the foregoing reasons, we AFFIRM the decision of the district court.
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