Willis v. Federal Bureau of Investigation

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued November 30, 2001 Decided December 28, 2001

No. 00-5281

James A. Willis, a/k/a Jimmy Willis,
Appellant

v.

Federal Bureau of Investigation, et al.,
Appellees

Appeal from the United States District Court
for the District of Columbia
(96cv01455)

James H. Lesar argued the cause and filed the briefs for
appellant.

Meredith Manning, Assistant U.S. Attorney, argued the
cause for appellees. With her on the brief were Roscoe C.
Howard Jr., U.S. Attorney, and R. Craig Lawrence, Assistant
U.S. Attorney.

 Before: Ginsburg, Chief Judge, Randolph and Tatel,
Circuit Judges.

Opinion for the Court filed by Circuit Judge Randolph.

Randolph, Circuit Judge: This case presents an issue of
first impression for this circuit: what criteria should guide
district courts in deciding motions for the appointment of
counsel in cases brought under the Freedom of Information
Act, 5 U.S.C. s 552 ("FOIA")?

James A. Willis is serving time for drug offenses. He filed
a FOIA action in 1996 seeking the release of numerous
documents. The documents, he claims, will exonerate him.
After bringing suit, Willis filed two motions for the appoint-
ment of counsel. FOIA does not contain a provision authoriz-
ing the appointment of counsel. Willis therefore invoked the
general civil statute: "The court may request an attorney to
represent any person unable to afford counsel." 28 U.S.C.
s 1915(e)(1). The district court denied both motions and then
granted summary judgment against Willis.

On Willis's appeal, we held that the failure of the magis-
trate judge, who was managing the case pursuant to 28
U.S.C. s 636, to provide any reasons for refusing to appoint
counsel for Willis necessitated a remand. Willis v. FBI, No.
98-5071, 1999 WL 236891 (D.C. Cir. Mar. 19, 1999). We stated
that the district court or the magistrate judge will need to
determine whether the criteria set forth in Poindexter v. FBI,
737 F.2d 1173 (D.C. Cir. 1984), a Title VII case, should be
adopted for FOIA cases.

On remand, the magistrate judge issued a report explaining
why he had denied Willis's motions for counsel. See Report
and Recommendation of March 6, 2000. Willis had shown
that he was capable of representing himself, his FOIA action
did not involve complex legal or factual issues, the case would
not require discovery, and the interests of justice would not
be served by appointing counsel. See id. at 5-8.

The district court adopted the report. The court concluded
that Local Civil Rule 83.11(a)(4)(B)--rather than Poindex-
ter--provides the relevant factors for deciding motions for the

appointment of counsel in FOIA cases. The local rule pro-
vides: "If the judge assigned the case determines, pursuant
to 28 U.S.C. s 1915(e), that the case should not be dismissed,
the judge may then determine whether to appoint an attorney
to represent such party. Such a determination should be
made as soon as practicable after the action is assigned,
taking into account: (i) the nature and complexity of the
action; (ii) the potential merit of the claims as set forth in the
pleading; (iii) the inability of the pro se party to retain
counsel by other means; (iv) the degree to which the inter-
ests of justice will be served by appointment of counsel,
including the benefit the court may derive from the assistance
of the appointed counsel; and (v) any other factors deemed
appropriate by the judge to serve the interests of justice."
D.D.C. Civ. R. 83.11(a)(4)(B).

Neither Willis nor any other indigent civil litigant is guar-
anteed counsel. The discretionary decisions of district courts
whether to appoint counsel under 28 U.S.C. s 1915(e)(1) will
be set aside only for abuse. See Cookish v. Cunningham, 787
F.2d 1, 2 (1st Cir. 1986); Luttrell v. Nickel, 129 F.3d 933, 936
(7th Cir. 1997). Here the magistrate judge, whose report and
recommendation the court adopted, followed the criteria in
Local Civil Rule 83.11(a)(4)(B). The magistrate determined
that counsel need not be appointed because Willis had shown
through numerous coherent filings that he was capable of
representing himself and making logical presentations to the
court. The magistrate also based his denial on his determina-
tion that Willis's FOIA case did not involve complex legal or
factual issues and, like many FOIA cases, would not require
any discovery. Willis points out that an analysis of the merits
of his case was absent from the magistrate's report, and he
argues that the magistrate's explanation for denying counsel
was therefore insufficient. We disagree. Given the magis-
trate's conclusion that Willis was capable of handling his
relatively straightforward FOIA case unaided, the magistrate
did not need to go any further.

In addition, we reject Willis's contention that the court
erred in selecting Local Civil Rule 83.11 as the appropriate
standard rather than Poindexter's multi-factor test. The

Poindexter criteria are the plaintiff's ability to afford an
attorney; the merits of the plaintiff's case; plaintiff's efforts
to secure counsel; and the capacity of the plaintiff to present
the case adequately without the aid of counsel. 737 F.2d at
1185. Poindexter interpreted Title VII's appointment provi-
sion, 42 U.S.C. s 2000e-5(f)(1), a provision "generally viewed
as imposing a lesser burden on plaintiffs seeking appointment
of counsel, both because of the specificity of Congress' action
... and because this provision does not require that the
plaintiff be a pauper." Poindexter, 737 F.2d at 1182 n.18.
That provision obviously does not apply to FOIA cases, nor
do the reasons behind it. Local Civil Rule 83.11, which
implements 28 U.S.C. s 1915(e)(1), thus controls. The local
rule differs only slightly from the Poindexter factors and, to
the extent there are differences, it embraces many of the
considerations adopted in other circuits for applying 28
U.S.C. s 1915(e)(1). See, e.g., Long v. Shillinger, 927 F.2d
525, 527 (10th Cir. 1991) (holding that courts should consider
the merits of the litigant's claims, the nature of the factual
issues, the litigant's ability to present his claims, and the
complexity of the legal issues); Cookish, 787 F.2d at 3
(holding that factors to be considered include the indigent's
ability to conduct whatever factual investigation is necessary,
the complexity of the factual and legal issues, and the capabil-
ity of the indigent litigant to present the case); Ulmer v.
Chancellor, 691 F.2d 209, 213 (5th Cir. 1982) (holding that
courts should consider a number of factors including the type
and complexity of the case and whether the indigent is
capable of adequately presenting the case).

Because the district court acted within its discretion in
deciding that Willis did not qualify for counsel under the local
rule, its judgment denying his motions is

Affirmed.