Margaret SPAULDING, Et Al., Plaintiffs-Appellants, v. UNIVERSITY OF WASHINGTON, Defendant-Appellee ( 1982 )

J. BLAINE ANDERSON, Circuit Judge,

concurring and dissenting:

I agree with Judge Sneed that, on this record, we should deny appellants the relief they seek in this interlocutory appeal. I do so for different reasons, set forth later in this statement.

I also agree with Judge Sneed’s statement (p. 1235, supra) that it is “within the district court’s discretion to choose which of these means will afford the parties adequate de novo review.” As will appear later, that discretion was properly exercised in this case in the only way possible.

In Part II, page 1235 of Judge Sneed’s opinion, he argues and concludes that for Title VII plaintiffs (presumably all and without regard to any showing of need or indigency), the transcript must “be provided by the district court” since the failure to do so “improperly deprives these litigants of their rightful access to such judges.” Respectfully, I cannot agree.

I must side with Judge Sneed in denying plaintiffs’ reimbursement of transcript costs from the University of Washington at this juncture. Therefore, I respectfully disagree with Judge Reinhardt’s reasons for now assessing costs against the University of Washington.

In my view, this court (panel) has been enticed into rendering what is, in effect, an advisory opinion. This interlocutory appeal under 28 U.S.C. § 1292(b) should have been denied. The district court did not properly certify the issue for interlocutory appeal. The district judge did not state “in writing in such [certification] order” that the issue sought to be certified involved a “controlling question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation. . . . ” (emphasis added). No such opinion or statement appears in the order nor elsewhere in the record available to us. District Judge’s Order, December 10, 1980, ER 141. It is obvious to me (perhaps as it was to Judge McGovern) that there is no “controlling question of law” going to the merits of this litigation. Furthermore, the conjunctive requirement cannot be met. The mundane transcript cost issue presented to us cannot possibly “materially advance the ultimate termination of this litigation.” That issue simply has nothing to do with the discrimination issues tried to the magistrate. It is wholly ordinary, collateral, and peripheral. This is nothing other than piecemeal review. The appeal should have been rejected out of hand.

My colleagues are quite properly concerned about access to Article III judges by Title VII plaintiffs. This is not an appropriate case for such concern. They (39 members of the School of Nursing faculty) have their transcript and they do have abundant access to Article III judges. No such right has been diminished by the magistrate nor anyone else. Paying for the transcript (as they did) did not deprive them of any right in this case.

I have no quarrel with the broad proposition that Congress intended to make it easier for Title VII plaintiffs to litigate their claims. However, that broad policy does not bridge the gap and provide the answer here. As discussed below, Congress has provided the means for ready access to the federal courts.

My colleagues do not mention, much more discuss, several matters not contradicted by any party to this appeal. First, 42 U.S.C. § 2000e-5(f)(l) 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.”

In brief, this is a specific provision permitting the attainment of in forma pauperis status in proper eases.

Moreover, the well-known and frequently used general statute, 28 U.S.C. § 1915, applies to “any court” in “any civil or criminal case” and was available to plaintiffs to achieve in forma pauperis status.

At no time in these proceedings have the plaintiffs made any effort to avail themselves of these beneficent provisions; in fact, in their brief, they reject these avenues for assistance.

Judge McGovern, in his order of December 10, 1980, found specifically, “[a] showing of indigency or need has not been attempted” by the plaintiffs and he proceeded to deny their motion to have a transcript prepared at government expense. Once again, I agree with Judge Sneed in his observation that it is “within the district court’s discretion.” The provisions in 42 U.S.C. § 2000e-5(f)(l) and 28 U.S.C. § 1915 are not self-executing. Nothing was brought to the attention of the district court to invoke the exercise of his discretion. There was no discretion to abuse.

My conclusions are twofold. First, we should dismiss this appeal for failure to comply with the requisites for a § 1292(b) interlocutory appeal. Alternatively, I would affirm the district court since there was not, and could not be, any abuse of discretion. A district court, under these circumstances, at least, would have no power to sua sponte declare in forma pauperis status for these plaintiffs. The transcript costs are ordinary litigation costs and the award of costs, if any, should abide the final termination of this litigation on the merits. We should not undertake to “legislate” an expansion upon access to the federal courts already provided by Congress.