JAMES O. BROWNING, District Judge.
Al-Villar filed a Complaint alleging employment discrimination and retaliation, because she is a transgendered woman, by her former supervisors at the Air Force Research Laboratory located in Albuquerque, New Mexico. See Civil Rights Complaint Pursuant to 42 U.S.C. § 1983 at 2, filed August 20, 2012 (Doc. 1)("Complaint"). Al-Villar makes claims under the Equal Pay Act, and, although she alleges jurisdiction only under 28 U.S.C. § 1343(3) and § 1983, she mentions "Discrimination Title VII" in the body of her Complaint. See Complaint at 2. After Al-Villar filed documents entitled "Right to Request Counsel," filed August 20, 2012 (Doc. 3), and "Right to Request No Court Fees, Court Costs, or Other Security," filed August 20, 2012 (Doc. 4), the Honorable Carmen E. Garza, United States Magistrate Judge, construed them as motions, and issued an Order to Show Cause, filed August 23, 2012 (Doc. 7), requiring the Al-Villar to submit a financial affidavit that sets out her monthly income and expenses. See Order To Show Cause at 1. Al-Villar complied with the Order and submitted a financial affidavit. See Response to Order to Show Cause, filed August 30, 2012 (Doc. 8). Based on the language in the Al-Villar's requests and her citation to Title VII in the body of her Complaint, Judge Garza construed Al-Villar's requests as ones brought pursuant to 42 U.S.C. § 2000e-5(f)(1) of Title VII of the Civil Rights Act of 1964. Judge Garza subsequently entered an order denying Al-Villar's request for appointment of counsel, rejecting Al-Villar's contention that she can not afford counsel and finding, after a review of the financial affidavit, that the "Plaintiff has the financial ability to afford counsel, especially given the willingness of most civil-rights attorneys in this District to represent clients who have meritorious cases on a contingency-fee basis." Order Denying Motion to Appoint Counsel at 6-7, filed October 18, 2012 (Doc. 11).
Judge Garza also prepared an ARD on Al-Villar's request to proceed without paying costs and fees. See ARD at 2. Judge Garza, in the ARD, noted:
Al-Villar misconstrued the ARD as an "Order denying motion to proceed under 28 USC § 1915"; filed no objections to the ARD; paid the filing fees; and requested "court process continuance." Response to Order Denying motion to proceed under 28 USC § 1915 at 1, filed October 31, 2012 (Doc. 14). Subsequently, on February 19, 2013, by and through her attorneys — the Pia Gallegos Law Firm, P.C. and APN-LAW, LLC — Al-Villar filed her Amended Complaint. See Doc. 15.
"The federal in forma pauperis statute, codified at 28 U.S.C. § 1915, allows an indigent litigant to commence a civil or criminal action in federal court without paying the administrative costs of proceeding with the lawsuit." Denton v. Hernandez, 504 U.S. 25, 27, 112 S.Ct. 1728, 118 L.Ed.2d 340 (1992). Section 1915(a) of Title 28 of the United States Code provides:
28 U.S.C. § 1915(a). To prove inability to pay court costs and fees, the Supreme Court of the United States has held: "We think an affidavit is sufficient which states that one cannot because of his poverty `pay or give security for the costs ... and still be able to provide' himself and dependents `with the necessities of life.'" Rowland v. California Men's Colony, Unit II Men's Advisory Council, 506 U.S. 194, 203, 113 S.Ct. 716, 121 L.Ed.2d 656 (1993)(quoting Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 339, 69 S.Ct. 85, 93 L.Ed. 43
Professor Stephen M. Feldman notes that 28 U.S.C. § 1915 was enacted to give the force of law to the idea, traceable as far back as the Magna Carta in England, that the indigent should have access to the courts:
Stephen M. Feldman, Indigents in the Federal Courts: The in Forma Pauperis Statute-Equality and Frivolity, 54 Fordham L.Rev. 413, 413-14 (1985)(footnotes omitted). Similarly, the Supreme Court has noted: "The federal in forma pauperis statute, enacted in 1892 and presently codified as 28 U.S.C. § 1915, is designed to ensure that indigent litigants have meaningful access to federal courts." Neitzke v. Williams, 490 U.S. 319, 324, 109 S.Ct. 1827, 104 L.Ed.2d 338 (1989) (citing Adkins v. E.I. DuPont de Nemours & Co., 335 U.S. 331, 342-43, 69 S.Ct. 85, 93 L.Ed. 43 (1948)).
Section 1915 includes a provision allowing for possible appointment of an attorney to represent the party proceeding in forma pauperis: "The court may request an attorney to represent any person unable to afford counsel." 28 U.S.C. § 1915(e)(1). In considering whether to appoint counsel, the district court should take into account the following factors: "the merits of the litigant's claims, the nature of the factual issues raised in the claims, the litigant's ability to present his claims, and the complexity of the legal issues raised by the claims." Rucks v. Boergermann, 57 F.3d 978, 979 (10th Cir. 1995) (quoting Williams v. Meese, 926 F.2d 994, 996 (10th Cir.1991)). "[T]he district court has broad discretion to appoint counsel for indigents under 28 U.S.C. § 1915(d), and its denial of counsel will not be overturned unless it would result in fundamental unfairness impinging on due process rights." Williams v. Meese, 926 F.2d 994, 996 (10th Cir.1991) (quoting Maclin v. Freake, 650 F.2d 885, 886 (7th Cir.1981)).
In 1996, when Congress enacted the Prison Litigation Reform Act ("PLRA") as part of the Omnibus Consolidated Appropriations Act of 1996, Pub.L. 103-134, 110 Stat 1321 (1991), "Congress ... placed a series of controls on prisoner suits, constraints designed to prevent sportive filings in federal court." Skinner v. Switzer, ___ U.S. ___, 131 S.Ct. 1289, 1299, 179 L.Ed.2d 233 (2011). The Supreme Court in Neitzke v. Williams also recognized
Congress' amendments to Section 1915 in the PLRA took away the language authorizing courts to dismiss the action, and moved language otherwise existing in the statute to create subsection (e), which provides:
28 U.S.C. § 1915(e). Thus, if a plaintiff brings a motion to proceed in forma pauperis and the district court finds that the plaintiff's "allegation of poverty is untrue," 28 U.S.C. § 1915(e) requires the court to dismiss the case. 28 U.S.C. § 1915(e)(2). See Lister v. Dep't of Treasury, 408 F.3d at 1312 ("[T]o succeed on a motion to proceed IFP, the movant must show a financial inability to pay the required filing fees, as well as the existence of a reasoned, nonfrivolous argument on the law and facts in support of the issues raised in the action."). The Tenth Circuit, recognizing that the PLRA made dismissal of a motion to proceed in forma pauperis a dispositive matter, has held that magistrate judges cannot enter an order denying plaintiff in forma pauperis status. See Lister v. Dep't of Treasury, 408 F.3d at 1312 ("[D]enial of [motion to proceed in forma pauperis] is the functional equivalent of an involuntary dismissal and is outside the scope of a magistrate's authority.")(quoting Woods v. Dahlberg, 894 F.2d 187 (6th Cir.1990)).
Section 200e-5 of Title 42 of the United States Code provides that, "[u]pon 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." 42 U.S.C. § 2000e-5(f)(1). The Tenth Circuit has held that, because of the substantial similarity between 42 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. § 1915(a), the district court's determination to grant leave to proceed without fees is the same under both 42 U.S.C. § 2000e-5(f)(1) and 28 U.S.C. § 1915(a). Burns v. Veterans Admin., No. 98-5069, 162 F.3d 1172, 1998
In Burns v. Veterans Admin., where the plaintiff brought a lawsuit requesting compensation for violation of his civil rights based on the denial of veterans' benefits, the Tenth Circuit noted that the suit did not appear to properly fit under Title VII, and thus his application to proceed without paying costs and fees under 42 U.S.C. § 2000e-5(f)(1), rather than under 28 U.S.C. § 1915, also did not appear proper. See 1998 WL 704704, at *1. The Tenth Circuit concluded, however:
1998 WL 704704, at *1 (emphasis added). The Tenth Circuit reasoned:
Burns v. Veterans Admin., 1998 WL 704704, at *1 (brackets in original).
In deciding whether to appoint counsel under 42 U.S.C. § 2000e-5(f)(1), however, courts, including the Tenth Circuit, have treated such a request as distinct from the request of a party proceeding in forma pauperis under 28 U.S.C. § 1915. In Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1422 (10th Cir. 1992), the Tenth Circuit reasoned that, because of the different language used in the two statutes, the two should be distinguished. See Castner v. Colorado Springs Cablevision, 979 F.2d 1417, 1422 n. 2 (concluding that a request for appointment of an attorney under 42 U.S.C. § 2000e-5(f)(1) "must be distinguished from the
Castner v. Colo. Springs Cablevision, 979 F.2d at 1421. Similarly, in Poindexter v. FBI, the United States Court of Appeals for the D.C. Circuit held that Congress provided courts' ability to appoint an attorney under § 2000e-5(f)(1) to protect not only indigent plaintiffs, but also plaintiffs of limited means:
Poindexter v. FBI, 737 F.2d at 1186 (emphasis added)(footnotes omitted). In Luna v. Int'l Ass'n of Machinists & Aerospace Workers Local #36, 614 F.2d 529
District courts may refer dispositive motions to a magistrate judge for a recommended disposition. See Fed.R.Civ.P. 72(b)(1) ("A magistrate judge must promptly conduct the required proceedings when assigned, without the parties' consent, to hear a pretrial matter dispositive of a claim or defense...."). Rule 72(b)(2) governs objections: "Within 14 days after being served with a copy of the recommended disposition, a party may serve and file specific written objections to the proposed findings and recommendations." Finally, when resolving objections to a magistrate judge's proposal, "the district judge must determine de novo any part of the magistrate judge's disposition that has been properly objected to. The district judge may accept, reject, or modify the recommended disposition; receive further evidence; or return the matter to the magistrate judge with instructions." Fed. R.Civ.P. 72(b)(3). Similarly, 28 U.S.C. § 636 provides:
28 U.S.C. § 636(b)(1)(C).
"The filing of objections to a magistrate's report enables the district judge to focus attention on those issues — factual and legal — that are at the heart of the parties' dispute." United States v. One Parcel of Real Property, With Buildings, Appurtenances, Improvements, and Contents, 73 F.3d 1057, 1059 (10th Cir.1996) ("One Parcel") (quoting Thomas v. Arn, 474 U.S. 140, 147, 106 S.Ct. 466, 88 L.Ed.2d 435 (1985)). As the United States Court of Appeals for the Tenth Circuit has noted, "the filing of objections advances the interests that underlie the Magistrate's Act, including judicial efficiency." One Parcel, 73 F.3d at 1059 (citing Niehaus v. Kan. Bar Ass'n, 793 F.2d 1159, 1165 (10th Cir.1986); United States v. Walters, 638 F.2d 947, 950 (6th Cir.1981)).
The Tenth Circuit held "that a party's objections to the magistrate judge's report and recommendation must be both timely and specific to preserve an issue for de novo review by the district court or for appellate review." One Parcel, 73 F.3d at 1060. "To further advance the policies behind the Magistrate's Act, [the Tenth Circuit], like numerous other circuits, have adopted `a firm waiver rule' that `provides that the failure to make timely objections to the magistrate's findings or recommendations waives appellate review of both factual and legal questions.'" One Parcel, 73 F.3d at 1059 (citations
In One Parcel, the Tenth Circuit, in accord with other courts of appeals, expanded the waiver rule to cover objections that are timely but too general. See One Parcel, 73 F.3d at 1060. The Supreme Court of the United States — in the course of approving the United States Court of Appeals for the Sixth Circuit's use of the waiver rule — noted:
Thomas v. Arn, 474 U.S. at 150-52, 106 S.Ct. 466 (emphasis in original)(footnotes omitted).
The Tenth Circuit also noted, "however, that `[t]he waiver rule as a procedural bar need not be applied when the interests of justice so dictate.'" One Parcel, 73 F.3d at 1060 (quoting Moore v. United States, 950 F.2d 656, 659 (10th Cir.1991) ("We join those circuits that have declined to apply the waiver rule to a pro se litigant's failure to object when the magistrate's order does not apprise the pro se litigant of the consequences of a failure to object to findings and recommendations." (citations omitted))). Cf. Thomas v. Arn, 474 U.S. at 154, 106 S.Ct. 466 (noting that, while "[a]ny party that desires plenary consideration by the Article III judge of any issue need only ask," a failure to object "does not preclude further review by the district judge, sua sponte or at the request of a party, under a de novo or any other standard"). In One Parcel, the Tenth Circuit noted that the district judge had decided sua sponte to conduct a de novo review despite the lack of specificity in the objections, but the Tenth Circuit held that it would deem the issues waived on appeal because it would advance the interests underlying the waiver rule. See 73 F.3d at 1060-61 (citing cases from other circuits where district courts elected to address merits despite potential application of waiver rule, but circuit courts opted to enforce waiver rule).
Where a party files timely and specific objections to the magistrate judge's proposed findings and recommendation, "on [] dispositive motions, the statute calls for a de novo determination, not a de novo hearing." United States v. Raddatz, 447 U.S. 667, 674, 100 S.Ct. 2406, 65 L.Ed.2d 424 (1980). "[I]n providing for a `de novo determination' rather than de novo hearing, Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations." United States v. Raddatz, 447 U.S. at 676, 100 S.Ct. 2406 (quoting 28 U.S.C. § 636(b) and citing Mathews v. Weber, 423 U.S. 261, 275, 96 S.Ct. 549, 46 L.Ed.2d 483 (1976)). The Tenth Circuit requires a "district court to consider relevant evidence of record and not merely review the magistrate judge's recommendation" when conducting a de novo review of a party's timely, specific objections to the magistrate's report. In re Griego, 64 F.3d 580, 583-84 (10th Cir.1995). "When objections are made to the magistrate's factual findings based on conflicting testimony or evidence .... the
In re Griego, 64 F.3d at 584.
Notably, because "Congress intended to permit whatever reliance a district judge, in the exercise of sound judicial discretion, chose to place on a magistrate's proposed findings and recommendations," United States v. Raddatz, 447 U.S. at 676, 100 S.Ct. 2406 (emphasis omitted), a district court "may accept, reject, or modify, in whole or in part, the findings or recommendations made by the magistrate," 28 U.S.C. § 636(b)(1). See Bratcher v. Bray-Doyle Indep. Sch. Dist. No. 42, 8 F.3d at 724-25 (holding that the district court's adoption of the magistrate judge's "particular reasonable-hour estimates" is consistent with the de novo determination that 28 U.S.C. § 636(b)(1) and United States v. Raddatz require).
Where no party objects to the magistrate judge's proposed findings and recommended disposition, the Court has, as a matter of course and in the interests of justice, reviewed the magistrate judge's recommendations. In Pablo v. Soc. Sec. Admin., No. CIV 11-0132 JB/ACT, 2013 WL 1010401 (D.N.M. Feb. 27, 2013) (Browning, J.), the Plaintiff failed to respond to the magistrate judge's proposed findings and recommended disposition, and thus waived his right to appeal the recommendations, but the Court nevertheless conducted a review. The Court generally
Al-Villar's motion requesting permission to proceed without paying court costs and fees under 42 U.S.C. § 2000e-5(f)(1) is, in many respects, substantially similar to a motion for leave to proceed in forma pauperis under 28 U.S.C. § 1915(a). The language that Congress uses in the two statutes is distinct, however, as § 2000e-5(f)(1) allows courts discretion to allow plaintiffs to proceed without paying court costs and fees in situations the court deems just, whereas § 1915(a) requires a finding that the plaintiff is unable to pay the fees and costs. Compare 42 U.S.C. § 2000e-5(f)(1), with 28 U.S.C. § 1915(a)(1). Accordingly, the United States Courts of Appeals, including the Tenth Circuit, have held that the district courts' inquiry into a request for appointment of counsel under § 2000e-5(f)(1) is distinct from the inquiry for a request for counsel under the in forma pauperis statute under 28 U.S.C. § 1915(e)(1). The denial of a request to commence a proceeding without paying court costs and fees under 42 U.S.C. § 2000e-5(f)(1), therefore, is distinct from a denial of a request to proceed in forma pauperis under 28 U.S.C. § 1915(a). See 28 U.S.C. § 1915(e)(2). While a magistrate judge cannot enter an order denying a motion for leave to proceed in forma pauperis, and denial of a request to proceed in forma pauperis makes dismissal
Al-Villar brings this lawsuit pursuant to 42 U.S.C. § 2000e-5(f)(1), which provides: "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." 42 U.S.C. § 2000e-5(f)(1). Accordingly, Al-Villar, in her Right to Request No Court Fees, Court Costs, or Other Security, states: "I intend to use all of my rights to include[:] Court Appointed Attorney Representative, No Court Fees, No Court Costs or Other Security." Right to Request No Court Fees, Court Costs, or Other Security at 1. The Court concludes that the portion of a motion to proceed without paying court costs and fees under § 2000e-5(f)(1) is distinct from a motion to proceed in forma pauperis under 28 U.S.C. § 1915(a).
On the one hand, the Tenth Circuit's analysis in Burns v. Veterans Administration counsels the Court to conclude that denial of a request to proceed without paying costs and fees under 42 U.S.C. § 2000e-5(f)(1) should effectively be equivalent to denying a request to proceed without paying fees and costs under 28 U.S.C. § 1915. The Tenth Circuit in Burns v. Veterans Administration reasoned that, based on the "substantial[] similar[ity]" of a request to proceed without paying costs and fees under 42 U.S.C. § 2000e-5(f)(1) to that of an in forma pauperis motion under 28 U.S.C. § 1915(a), courts should use the same standard of review under the provisions. 1998 WL 704704, at *1. The Tenth Circuit went further, concluding that whether a request is brought under 42 U.S.C. § 2000e-5(f)(1) or under 28 U.S.C. § 1915(a) does not affect the outcome of the request. See Burns v. Veterans Admin., 1998 WL 704704, at *1 ("Even liberally construing [the] pro se filings as stating a Bivens type of action.... the outcome of [the] attempt to proceed without payment of fees would not differ...."). To extend the Tenth Circuit's construction of 42 U.S.C. § 2000e-5(f)(1) with regard to the standard of review in Burns v. Veterans Administration to whether failure to show poverty requires dismissal, however, may be at some tension with the United States Courts of Appeals' holdings, including the Tenth Circuit's, which have held that the attorney-appointment provision § 2000e-5 requires an analysis separate from a request for an appointment of an attorney under 28 U.S.C. § 1915.
In Castner v. Colorado Springs Cablevision, for instance, the Tenth Circuit determined that, based on the language of the two statutes and Congress' special concerns regarding employment discrimination lawsuits, a request for appointment of counsel under § 2000e-5(f)(1) should be
Congress' intent in allowing courts to appoint counsel to represent plaintiffs bringing a Title VII lawsuit under § 2000e-5 was not to provide counsel just to indigent plaintiffs, but was rather to allow plaintiffs, who generally have less of a means to adequate resources and legal talent, have a fighting chance in their Title VII lawsuits:
Castner v. Colo. Springs Cablevision, 979 F.2d at 1421 (quoting H.R.Rep. No. 238, 92d Cong., 2d Sess., reprinted in 1972 U.S.C.C.A.N. at 2148). Thus, as the D.C. Circuit noted: "[T]he appointment provision is primarily intended to protect plaintiffs with limited economic means .... [The court] should not insist that a plaintiff be destitute, nor should it demand as substantial a showing as that required to proceed in forma pauperis." Poindexter v. FBI, 737 F.2d at 1186 (emphasis added).
Al-Villar speaks specifically to what Congress had in mind in recognizing that Title VII actions often pit parties of unequal strength and resources against each other: "I have no shame in stating that I was not receiving Equal Pay For Equal Work and cannot afford an attorney.... I intend to use all of my rights to include... No Court Fees, No Court Costs or Other Security." Right to Request No Court Fees, Court Costs or Other Security at 1. Moreover, in the House Report accompanying the bill enacting § 20003-5(f)(1), Congress pointed out that this particular subsection was designed to protect "[t]he complainant, who is usually a member of a disadvantaged class, [and] is opposed by an employer who not infrequently is one of the nations's [sic] major producers, and who has at his disposal a
The Tenth Circuit's reliance on the differing language that Congress used in § 2000e-5(f)(1) compared with that of 28 U.S.C. § 1915 in Castner v. Colorado Springs Cablevision counsels in favor of distinguishing a motion to commence a lawsuit without costs and fees brought specifically under § 2000e-5(f)(1)'s provisions from that of a motion to proceed in forma pauperis under § 1915(a). Section 2000e5(f)(1) provides that, "[u]pon application by the complainant and in such circumstances as the court may deem just, the court ... may authorize the commencement of the action without the payment of fees, costs, or security." 42 U.S.C. § 2000e-5(f)(1) (emphasis added). Section 1915(a), on the other hand, provides that
28 U.S.C. § 1915(a)(1) (emphasis added). In § 2000e-5(f)(1) Congress does not require a complainant to provide an affidavit including a statement of his or her assets, or to state that the complainant is unable to pay court costs and fees. Rather, Congress grants courts authorization to allow a party to commence a lawsuit in situations in which the courts deem it just to do so. This authorization comports with the Tenth Circuit's recognition in Castner v. Colorado Springs Cablevision that, when considering an application pursuant to § 2000e-5(f)(1), "the court must consider Congress's `special ... concern with legal representation in Title VII actions.'" 979 F.2d at 1421 (quoting Jenkins v. Chemical Bank, 721 F.2d at 879). The Court concludes, thus, that Congress' purpose in enacting 42 U.S.C. § 2000e-5(f)(1) was not to allow only indigent plaintiffs to proceed to court in Title VII actions without paying for an attorney, but to include "plaintiffs with limited economic means" in the class of persons who could so proceed. Poindexter v. FBI, 737 F.2d at 1186.
The absence of language similar to the PLRA's recent amendment to the in forma pauperis statute, requiring mandatory dismissal of a lawsuit where the party's allegation of poverty is untrue, see 28 U.S.C. § 1915(e)(2)(A), from 42 U.S.C. § 2000e-5(f)(1) also counsels in favor, especially in this case, in treating the two statutes separately. At the time she filed her motion, Al-Villar was proceeding pro se, but she was not, and has never during the course of this litigation been, a prisoner. Thus, automatic dismissal of her case here does not further Congress or the federal judiciary's interest in preventing the "flood of frivolous litigation," which was Congress' purpose in the PLRA for adding the mandatory dismissal requirement to the in forma pauperis statute. Neitzke v. Williams, 490 U.S. at 325, 109 S.Ct. 1827.
Moreover, if Congress, in requiring mandatory dismissal of a party's case when a court finds that the allegation of poverty is untrue, sought automatic dismissal
While this conclusion may, at first blush, appear somewhat at odds with the Tenth Circuit's decision in Burns v. Veterans Administration, closer examination of the analysis in Burns v. Veterans Administration proves consistent with the Court's conclusion. At issue in Burns v. Veterans Administration was the standard of review for denial of authorization under § 2000e-5(f)(1) to proceed without paying court costs and fees, not whether such a motion should be construed as a 28 U.S.C. § 1915(a) motion to proceed in forma pauperis. See 1998 WL 704704, at *1. The Tenth Circuit concluded that, because "[t]he language of [42 U.S.C. § 2000e-5(f)(1)] is substantially similar to that of the broader general statute proceedings in forma pauperis," a district court's decision whether to allow a party to proceed without paying costs and fees is discretionary under both statutes. 1998 WL 704704, at *1 (emphasis added). The Tenth Circuit thus held: "The language of § 2000e(5)(f)(1) ... reflects a similarly discretionary standard ... [and] the outcome" of the motions "would not differ." Burns v. Veterans Admin., 1998 WL 704704, at *1.
Here, the conclusion that the two statutes are distinct, and require a distinct analysis, is in recognition of the Tenth Circuit's recognition in Castner v. Colorado Springs Cablevision that there is a different economic threshold — indigency for 28 U.S.C. § 1915 and limited economic means for 42 U.S.C. § 2000e-5(f)(1) — whether to grant a request for a court-appointed-attorney under the two statutes. The Court's recognition that a motion to proceed without paying court costs and fees under the two statutes calls for different inquiries is not inconsistent with the Tenth Circuit's holding in Burns v. Veterans Administration. The Tenth Circuit has already decided that the substantially similar language in both of the statutes reflects Congress' recognition of "a similarly
While it might be argued that treating the two statutes distinct will open the gates to a "`flood of frivolous litigation,'" Neitzke v. Williams, 490 U.S. at 325, 109 S.Ct. 1827, by allowing plaintiffs to contravene the stringent requirements and harsh consequences that Congress put in place in 28 U.S.C. § 1915 for failure to meet those requirements, the Court does not believe that this danger is a strong possibility. While a party may physically file a Title VII lawsuit, as the Tenth Circuit noted in EEOC v. W.H. Braum, Inc., 347 F.3d 1192 (10th Cir.2003), to properly bring a Title VII lawsuit, a plaintiff must have already taken the case to the United States Equal Employment Opportunities Commission:
EEOC v. W.H. Braum, Inc., 347 F.3d at 1196 (footnote omitted).
Given that the plaintiffs receipt of a "right-to-sue" letter is a condition precedent to commencing a Title VII lawsuit under § 2000e-5(f)(1), therefore, the Court's conclusion that denial of a motion to proceed without paying court costs and fees brought under § 2000e-5(f)(1) does not require dismissal of the case does not likely threaten Congress' concern in enacting the PLRA, and in requiring dismissal of cases requesting to proceed in forma pauperis under § 1915 in certain circumstances. Just as the Tenth Circuit in Burns v. Veterans Admininstration noted that "42 U.S.C. § 2000e ... does not appear to be the proper vehicle for redress of [the plaintiffs] claims for compensation... for violation of civil rights ...," and proceeded to uphold the district court's denial of his application to proceed without paying fees and costs, it can often be discerned from the face of a complaint whether an action is, in reality, properly a Title VII action. Where the face of a complaint discloses that the action is not properly a Title VII complaint, a district court is still free to, and should, as Judge Garza did in Al-Villar's case, construe the pro se plaintiff's request to proceed without paying court costs and fees as a motion to proceed in forma pauperis under § 1915(a).
The canons of statutory construction provide additional support for the Court's decision to treat at least one portion of a motion to commence a suit without court costs and fees under § 2000e-5(f)(1) separately from a motion to proceed in forma pauperis under § 1915(a). Were the Court to conclude that the two motions are essentially the same, requiring the same showing of poverty to proceed under both, and concluding that denial of both requires dismissal, the Court would effectively be finding 42 U.S.C. § 2000e-5(f)(1) to be superfluous, something that the rules of construction do not favor. See Corley v. United States, 556 U.S. 303, 314, 129 S.Ct. 1558, 173 L.Ed.2d 443 (2009) ("`A statute should be construed so that effect is given to all its provisions, so that no part will be inoperative or superfluous, void or insignificant....'")(quoting Hibbs v. Winn, 542 U.S. 88, 101, 124 S.Ct. 2276, 159 L.Ed.2d 172 (2004)); TRW Inc. v. Andrews, 534 U.S. 19, 31, 122 S.Ct. 441, 151 L.Ed.2d 339 (2001) ("It is `a cardinal principle of statutory construction' that `a statute ought, upon the whole, to be so construed that, if it can be prevented, no clause, sentence, or word shall be superfluous, void, or insignificant.'") (quoting Duncan v. Walker, 533 U.S. 167, 174, 121 S.Ct. 2120, 150 L.Ed.2d 251 (2001)). On the one hand, before the PLRA in 1996, when Congress added the phrase "the court shall dismiss the case at
On the other hand, however, the in forma pauperis statute has been in place since 1859, allowing indigent plaintiffs access to the courts without paying costs and fees regardless of the cause of action alleged. With the in forma pauperis statute in place, Congress enacted § 2000e-5(f)(1) in 1972, providing courts discretion to allow Title VII plaintiffs to proceed without paying costs and fees, and to appoint them attorneys, in cases in which the courts deem it just to do so, not solely in cases in which the plaintiff is indigent. The Court's interpretation is thus necessary to give effect to Congressional intent, and to give effect to "Congress's `special concern with ... Title VII actions.'" Castner v. Colo. Springs Cablevision, 979 F.2d at 1421. See Rumsfeld v. Forum for Academic & Institutional Rights, Inc., 547 U.S. 47, 57, 126 S.Ct. 1297, 164 L.Ed.2d 156 (2006) (disagreeing with the parties' stipulated meaning given to the statute, reasoning with regard to its differing interpretation of the language: "Not only does the text support this view, but this interpretation is necessary to give effect to the Solomon Amendment's recent revision."). There is no sound reason to find that Congress, in seeking to halt the flood of frivolous prisoner pro se cases by amending the in forma pauperis statute, which had been in place before Congress enacted § 2000e-5, also sought to stop cases by plaintiffs whom the EEOC had granted the right to sue under § 2000e-5(f)(1), without also amending that statute, unless the Title VII plaintiff was also relying on poverty to escape the requirement that he or she pay court costs and fees to commence the suit.
In sum, as the Tenth Circuit has held that inquiry into the "financial inability" to pay of a party requesting appointment of an attorney under § 2000e-5(f)(1) is "less stringent than that required for the general in forma pauperis statute," holding that "the court should examine the [] ability to pay counsel and still meet ... daily expenses," Castner v. Colo. Springs Cablevision, 979 F.2d at 1422, the Court concludes that the inquiry into the plaintiff's financial inability to pay under § 2000e-5(f)(1) is also less stringent than that under § 1915, and does not require a showing of poverty. The Court thus concludes that a request to commence a lawsuit without paying court costs and fees under 42 U.S.C. § 2000e-5(f)(1), depending on the basis of the request, is distinct from a request to proceed in forma pauperis under 28 U.S.C. § 1915(a).
If the Title VII plaintiff does not plead indigence, the court uses Castner v. Colorado Springs Cablevision's review standard; if the Title VII plaintiff alleges indigence, however, the Court must use the same review standard as it uses under 28 U.S.C. § 1915. Only if the Title VII plaintiff relies solely on indigence, however, does § 1915 require that the Court dismiss the case when the allegation of indigence proves untrue.
Whereas the Tenth Circuit held in Lister v. Department of the Treasury that magistrate judges cannot deny a motion to proceed in forma pauperis, because 28 U.S.C. § 1915(e)(2)(A) then requires automatic dismissal of the case, here, because the requests are distinct as long as the request to commence the action is brought under 42 U.S.C. § 2000e-5(f)(1), and because § 2000e-5(f)(1) does not contain any language requiring or allowing dismissal of a case for denial of a motion to proceed without paying court costs and fees, the
Even if, however, the denial of a motion under 42 U.S.C. § 2000e-5(f)(1) to proceed without paying court costs and fees requires dismissal of the case, the Court would not dismiss Al-Villar's case, because she paid the court costs and fees before the Court was able to make a finding under § 1915(e)(2)(A) that "the allegation of poverty is untrue." See Filing fee, filed October 31, 2012 (Doc. 13). Indeed, in no judicial officer has made that finding, because she did not allege poverty. Judge Garza similarly did not make a finding that any allegation of poverty is untrue. See generally ARD at 1-5. This finding is a condition precedent to dismissing a case under § 1915(e)(2)(A) involving a motion to proceed in forma pauperis. The Court, therefore, will not dismiss Al-Villar's case.
Al-Villar has not filed any objections to the ARD. The time for filing objections has now passed. Accordingly, she has waived her right to seek the Court's de novo review of the ARD. See One Parcel, 73 F.3d at 1060. The Court cannot soundly say that Judge Garza's recommendation to deny Al-Villar's request to proceed without paying court costs and fees, because it appears that she can pay the costs and fees, cover her monthly expenses, and maintain her standard of living, is clearly erroneous, arbitrary, obviously contrary to law, or an abuse of discretion. The Court will therefore adopt the ARD and will deny the Al-Villar's request to prosecute this case without paying court costs and other fees.
