Sandle v. Principi , 201 F. App'x 579 ( 2006 )

F I L E D
United States Court of Appeals
Tenth Circuit
UNITED STATES CO URT O F APPEALS
October 17, 2006
FO R TH E TENTH CIRCUIT Elisabeth A. Shumaker
Clerk of Court
LILLIAN F. SANDLE,
Plaintiff-Appellant,
v. No. 04-1482
(D.C. No. 02-BB-1358 (PAC))
ANTHONY J. PRINCIPI, Secretary, (D . Colo.)
V eterans A ffairs; E. TH O RSLAND,
JR., Director VA M edical Center; ED
SANCHEZ, Chief, Human Resources,
Denver V A M edical Center;
RAYM OND (RAY) DELUNA, Human
Resources, Denver VA M edical
C enter; U N ITED STA TES O F
A M ER ICA,
Defendants-Appellees.
OR D ER AND JUDGM ENT *
Before O’BRIEN, HOL LOW A Y, and BALDOCK , Circuit Judges.
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist the determination of
*
This order and judgment is not binding precedent, except under the
doctrines of law of the case, res judicata, and collateral estoppel. The court
generally disfavors the citation of orders and judgments; nevertheless, an order
and judgment may be cited under the terms and conditions of 10th Cir. R. 36.3.
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is
therefore ordered submitted without oral argument.
Plaintiff-appellant Lillian F. Sandle appeals from orders of the district
court granting defendants’ motions for summary judgment. She also claims the
court erred in denying her motions to appoint counsel and in affirming the
clerk’s award taxing costs against her in the amount of $673.75. For the reasons
below, we find no error and affirm.
Plaintiff is a nurse formerly employed by the Department of Veterans
A ffairs (V A ) at the V A Medical Center in Denver, Colorado. In 1991, the VA
terminated her employment because she suffered an injury and could no longer
perform her job duties.
Prior to and following her termination, plaintiff had filed six separate
complaints of discrimination with the V A. All of her complaints were
eventually resolved via a written settlement agreement with the VA, which was
executed in 1997.
In addition to paying plaintiff money, the settlement agreement obligated
the VA to give her “[p]riority placement within six months from the date of this
agreement (from the list of positions provided by [plaintiff])” that was to be
filled by the V A at its Denver facility, and for which she w as qualified. R. I,
doc. 97, Ex. A-1 at 1.
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Plaintiff later contended that the VA failed to give her priority placement
for several positions and as a result of this alleged breach, she filed a new
administrative complaint in 1998. Her new complaint was eventually dismissed
by the VA’s Office of Resolution.
On appeal from the Office of Resolution’s dismissal, the Equal
Employment Opportunity Commission (EEOC) reversed the agency’s decision,
and held the settlement agreement invalid. As a consequence of its finding of
invalidity, the EEOC ordered the VA to reinstate all of plaintiff’s complaints
that had been pending at the time the agreement was executed. Thus, the parties
were returned to their pre-settlement agreement status.
Following reinstatement and reconsideration of plaintiff’s pre-settlement
complaints, the VA denied her claims. Following an unsuccessful appeal, the
EEOC issued its decision on M arch 27, 2002, denying plaintiff’s request for
reconsideration. Among other things, the EEOC’s decision stated: “You have
the right to file a civil action in an appropriate U nited States D istrict Court
w ithin ninety (90) calendar days from the date that you receive this decision.”
R. I, doc. 44, Ex. A at 1 (emphasis in original).
On July 3, 2002, plaintiff filed her lawsuit, which contained six claims for
relief: claims one through four were based upon an alleged breach of the
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settlement agreement; the fifth claim was for misrepresentation; and the sixth
claim asserted violations of Title VII, the ADEA, and the Rehabilitation Act. 1
Summary Judgment
Plaintiff admitted that she received the EEOC’s decision on April 3, 2002.
However, she did not file her lawsuit until July 3, 2002, which is 91 calendar
days after receipt of the decision. Nonetheless, she claims error as to the
district court’s order holding that her sixth claim for relief was time barred.
This court reviews the district court’s grant of summary judgment
de novo, view ing the evidence and drawing reasonable inferences therefrom in
the light most favorable to the nonmoving party. Gossett v. Okla. ex rel. Bd. of
Regents for Langston Univ., 245 F.3d 1172, 1175 (10th Cir. 2001).
After review ing the record, we conclude that the district court properly
granted summary judgment on plaintiff’s sixth claim for relief because she
failed to file her complaint within 90 days following receipt of the EEOC’s final
decision on April 3, 2002. As such, we affirm the order for summary judgment
for the reasons set forth in the court’s Order Granting Summary Judgment dated
November 20, 2002.
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The district court granted plaintiff’s m otion to proceed in forma pauperis
pursuant to 28 U.S.C. § 1915(a).
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W e likewise affirm the district court’s order on summary judgment
concerning plaintiff’s five remaining claims. Here, the court correctly identified
her second, third, and fourth claims as alleging a breach of the settlement
agreement, which the EEOC held was invalid.
As to plaintiff’s first claim for relief, the district court characterized this
claim as alleging both a breach of the settlement agreement and a mishandling
of her prior administrative complaints. In addition to the fact that the EEOC
held the agreement invalid, her grievances about the mishandling of her prior
complaints were necessarily resolved w hen the EEOC reinstated those
complaints for further consideration.
Finally, the district properly granted summary judgment on the
misrepresentation claim, because the United States had not waived sovereign
immunity under the Federal Tort Claims Act, 28 U.S.C. § 2680(h).
Therefore, we affirm the order for summary judgment on plaintiff’s
remaining claims for the reasons set forth in the district court’s Order dated
November 1, 2004.
Appointment Of Counsel
On three separate occasions, plaintiff requested that the district court
appoint counsel to represent her in the lawsuit. Each time, the court denied the
motion in a written order.
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There is no constitutional right to counsel in either a Title VII case or
other civil case. Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420
(10th Cir. 1992) (Title VII); Durre v. Dempsey, 869 F.2d 543, 547 (10th Cir.
1989) (civil case). There are, however, two statutes that apply to a case such as
this: the first is 42 U.S.C. § 2000e-5(f)(1), which allows a court to appoint
counsel for a claimant in a Title VII case; the second is 28 U.S.C. § 1915(e)(1),
which allows a court to attempt to obtain counsel for an in forma pauperis
person in a civil case.
In exercising its discretion to appoint counsel in a Title VII case, the
district court should consider: (1) the financial inability to afford counsel;
(2) diligence in searching for counsel; (3) the merits of the claims; and (4) the
ability to present the case without counsel. Castner, 979 F.2d at 1420-21. In
the exercise of its discretion to seek volunteer counsel in other civil cases, the
court should consider: (1) the merits of the claim; (2) the nature of the factual
issues raised in the claims; (3) the ability to present the claims; and (4) the
complexity of the issues raised by the claims. Rucks v. Boergermann, 57 F.3d
978, 979 (10th Cir. 1995).
This court reviews the denial of a request for counsel in Title VII cases and
other civil cases under the same standard–abuse of discretion. Castner, 979 F.2d
at 1422-23; Rucks, 57 F.3d at 979.
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Here, the record demonstrates that the first two orders considered the
relevant factors for appointing counsel in Title VII cases, including those
announced in Castner, and applied those factors to the facts presented by
plaintiff. The third order, which was entered after plaintiff’s Title VII claim had
been dismissed, considered the relevant factors outlined in Rucks and applied
those factors to the facts presented by plaintiff. W e find no abuse of discretion.
Costs
In its order for summary judgment dismissing plaintiff’s first through fifth
claims, the district court ordered that defendants be awarded their costs as the
prevailing parties. Defendants timely filed their bill of costs, and the clerk taxed
costs in the amount of $673.75 ($559.75 for fees for the transcript and court
reporter for plaintiff’s deposition and $114.00 for the cost of copying defendants’
tw o motions for summary judgment, their replies, and a supplemental motion).
The court later denied plaintiff’s Fed. R. Civ. P. 54(d) motion for judicial review
of costs.
As she did in the district court, plaintiff claims on appeal that the court’s
order w as error, because she is “indigent.” Suppl. R. I, doc. 148 at 3. Defendants
claim that an award of costs is proper against an in forma pauperis party pursuant
to 28 U .S.C. § 1915(f)(1), and that 28 U .S.C. § 1920 authorizes recovery of these
costs.
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W e review the district court’s award of costs for an abuse of discretion.
See Tilton v. Capital Cities/ABC, Inc., 115 F.3d 1471, 1474-79 (10th Cir. 1997)
(reviewing several items of costs awarded under 28 U.S.C. § 1920).
Federal R. Civ. P. 54(d)(1) provides for costs to be awarded to the
prevailing party as a matter of course, unless the court otherwise directs, and
“[e]xcept when express provision therefor is made . . . in a statute of the United
States.” The in forma pauperis statute, 28 U.S.C. § 1915(f)(1), provides:
“[j]udgment may be rendered for costs at the conclusion of the suit or action as in
other proceedings,” with certain exceptions that do not apply in this case.
There is no question that the costs awarded by the district court are
recoverable under 28 U.S.C. § 1920, and case law interpreting the statute. See,
e.g., Callicrate v. Farmland Indus., Inc., 139 F.3d 1336, 1339 (10th Cir. 1998)
(costs of taking and transcribing depositions); Tilton, 115 F.3d at 1475 (copying
costs). Instead, the only issue is w hether the court abused its discretion in
awarding costs against plaintiff and in favor of defendants as the prevailing
parties, because she is indigent. We conclude that the court did not abuse its
discretion.
Indeed, this court reached a similar result in Rodriguez v. Whiting Farms,
Inc., 360 F.3d 1180, 1190-91 (10th Cir. 2004). In Rodriguez, plaintiffs who were
indigent and lost a close and difficult case, argued that they should not have to
pay defendants’ costs. Id. at 1190 (quotation marks omitted). W hile we
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acknowledged that a court may consider indigent circumstances in exercising
discretion whether to award costs, we concluded that the district court did not
abuse its discretion in awarding costs to the prevailing party simply because the
non-prevailing parties were indigent. Id. at 1190-91.
The judgment of the district court is AFFIRMED.
Entered for the Court
Terrence L. O’Brien
Circuit Judge
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