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.
