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Spanos v. Penn Central Transportation Co.

UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT


decided: December 12, 1972.

JOHN T. SPANOS, APPELLANT,
v.
PENN CENTRAL TRANSPORTATION COMPANY, APPELLEE

Author: Per Curiam

John T. Spanos, Appellant, filed charges with the Equal Employment Opportunity Commission prior to October 6, 1971. On that date the Commission notified him by letter that in accordance with Section 1601.25a(c) of its Rules and Regulations he could, within 30 days of its receipt, institute a civil action in the appropriate District Court. Accordingly, on November 1, 1971, he presented a complaint*fn1 to the United States District Court for the Western District of Pennsylvania pursuant to 42 U.S.C. § 2000e-5(e), seeking leave, among other things, to prosecute it without payment of fees and costs. He accompanied the complaint with a petition for the appointment of counsel, likewise provided in 42 U.S.C. § 2000e-5(e).*fn2 The complaint was also accompanied by the affidavit of Mr. Spanos, in which he deposed that he was without funds and that "he does not have the time or the means available within the thirty (30) day time limit . . . to seek out an attorney who might be willing to take the case without the payment of a retainer on the prospect of winning and being awarded a fee by the Court."

In its memorandum on the petition, the District Court observed that it was "reluctant to be obligated to any attorney by requesting him to voluntarily accept such an appointment until such time as it becomes obvious that an individual has presented a meritorious claim which he cannot adequately pursue pro se." Accordingly, an order was entered on November 9, 1971 directing the Clerk of the District Court to file the complaint without payment of fees, costs or security and instructing the United States Marshal to make service at the expense of the United States. It denied the petition for the appointment of counsel without prejudice "to be renewed at such time as it appears that the petitioner has presented a meritorious claim which he cannot adequately pursue pro se."

Mr. Spanos then filed this appeal. It deals solely with alleged error committed by the District Court in denying his petition for the appointment of counsel. The question of the appealability of the order as final was not raised by the parties, but we consider it appropriate to deal with it in the margin.*fn3

Coming then to the substantive question before us, Mr. Spanos made no representation in his petition that he had attempted to enlist the aid of counsel, a burden certainly placed upon him, as did the petitioner in Petete v. Consolidated Freightways.*fn4 Although Mr. Spanos had nearly thirty days in which to make such an effort, he passed the matter over with the casual comment that he "did not have the time or the means available within the 30-day time limit . . . to seek out an attorney."*fn5 Considering the fact he was unemployed during the time in question, he cannot justifiably impose this duty upon the court.

The complaint of Mr. Spanos subsists in accordance with the District Court's order. Indeed, it has been answered by the Penn Central Transportation Company and the suit is at issue. Mr. Spanos can pursue it pro se in accordance with the Court's order.

The disposition of the petition was well within the discretion of the District Court and nothing in the way of abuse thereof has been shown or even alleged.

Insofar as the order of the District Court of November 9, 1971, denies the petition of Mr. Spanos for the appointment of counsel, it will be affirmed.


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