Roper v. Department of Agriculture

1
IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW MEXICO
DEBBRA L. ROPER,
Plaintiff,
v. 	No. 2:26-cv-0123-GJF-DLM
DEPARTMENT OF AGRICULTURE,
Defendant.
ORDER DENYING MOTION FOR APPOINTMENT OF COUNSEL
THIS MATTER is before the Court on pro se Plaintiff’s Motion for Appointment of
Counsel. (Doc. 6.) Plaintiff requests that the Court appoint counsel stating:
(i) 	Plaintiff is financially unable to retain counsel;
(ii) 	This case involves exceptional legal and procedural complexity which “exceed the
capacity of a typical pro se litigant and require familiarity with federal employment
law, administrative exhaustion doctrines, and federal civil procedure, because it
“presents overlapping statutory and jurisdictional issues, including:” (a) review of
a Merit Systems Protection Board decision; (b) Title VII discrimination claims; (c)
Rehabilitation Act failure to accommodate claims; (d) mixed-case jurisdiction
under 5 U.S.C. § 7703; and (e) procedural interactions between MSPB, EEOC, and
federal district court review;
(iii) 	Plaintiff cannot adequately present this case without counsel because she is
“without legal training and faces a represented federal agency;” and
(iv) 	Plaintiff’s claims are non-frivolous.
(Id. at 1.)
Case 2:26-cv-00123-GJF-DLM Document 7 Filed 02/05/26 Page 1 of 4

2
“[C]ivil litigants have no right to counsel.” Witmer v. Grady Cnty. Jail, 483 F. App’x 458,
462 (10th Cir. 2012). The decision to appoint counsel is left to the “extremely broad” discretion of
the district court. Castner v. Colo. Springs Cablevision, 979 F.2d 1417, 1420 (10th Cir. 1992).
While the Court has authority to “request an attorney to represent a litigant who is proceeding in
forma pauperis,” Johnson v. Johnson, 466 F.3d 1213, 1217 (10th Cir. 2006) (emphasis added), the
Court cannot “require an unwilling attorney to represent an indigent litigant in a civil case,”
Mallard v. U.S. Dist. Ct. for S. Dist. of Iowa, 490 U.S. 296, 298 (1989) (emphasis added). Congress
has not provided any mechanism, process, or funds to pay appointed counsel. See 28 U.S.C.
§ 1915(e)(1). Thus, the Court not only considers the benefits of having a represented plaintiff, but
also must consider the hardship imposed on an attorney who is appointed to serve without
remuneration or compensation, as well as without assurance that he or she would have funds
available to assist in the investigation of claims, conduct formal discovery, retain experts, pay
witness fees, or otherwise defray the costs of litigation.
Plaintiff cites Castner v. Colorado Springs Cablevision, 979 F.2d 1417 (10th Cir. 1992),
for the proposition that Courts have discretion to appoint counsel in civil rights actions. (See Doc.
6 at 1–2.)
A plaintiff asserting an employment discrimination claim has no constitutional or
statutory right to appointed counsel. Poindexter v. FBI, 737 F.2d 1173, 1179 (D.C.
Cir. 1984); Ivey v. Board of Regents of Univ. of Alaska, 673 F.2d 266, 269 (9th Cir.
1982). Title VII of the Civil Rights Act of 1964, however, provides that the district
court may, in its discretion, appoint counsel for a plaintiff in an employment
discrimination action. 42 U.S.C. § 2000e-5(f)(1) states 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 . . . .
[T]he court must keep in mind that Congress has not provided any mechanism for
compensating 	such 	appointed 	counsel. 	Thoughtful 	and 	prudent 	use 	of 	the
appointment power is necessary so that willing counsel may be located without the
need to make coercive appointments. The indiscriminate appointment of volunteer
Case 2:26-cv-00123-GJF-DLM Document 7 Filed 02/05/26 Page 2 of 4

3
counsel to undeserving claims will waste a precious resource and may discourage
attorneys from donating their time.
Castner, 979 F.2d at 1421. The United States Court of Appeals for the Tenth Circuit has more
recently addressed the issue stating:
We start with the scope of the district court’s authority: The court cannot appoint
counsel; instead, the court can only ask an attorney to take the case. Rachel v. Troutt,
820 F.3d 390, 396–97 (10th Cir. 2016). In deciding whether the district court acted
within its discretion, “we consider the merits of the claims, the nature of the claims,
[the claimant's] ability to present the claims, and the complexity of the issues.” Id.
at 397.
The 	district 	court 	considered 	these 	factors 	and 	declined 	to 	request 	legal
representation for Mr. Moaz. This decision was reasonable:
Each year, the district court receives hundreds of requests for legal
representation and only a small number of attorneys are available to
accept these requests. Accordingly, the district court must use
discretion in deciding which cases warrant a request for counsel. To
do otherwise would deprive clearly deserving 	litigants of an
opportunity 	to 	obtain 	legal 	representation. 	The 	dilemma 	is
unfortunate for litigants like [Mr. Moaz]. But the dilemma was not
the district court's fault; that dilemma was the product of the court's
lack of authority to compel legal representation or to reimburse
attorneys for their time.
Id. at 397.
Moaz v. Denver Int’l Airport, 747 F. App’x 708, 711 (10th Cir. 2018).
The Court denies Plaintiff’s motion to appoint counsel because the Court does not have the
authority to appoint counsel. The Court declines to request legal representation for Plaintiff.
Plaintiff originally filed this case with the United States Court of Appeals for the Federal Circuit,
which subsequently transferred the case to this Court. See Roper v. Dep’t of Agriculture, filed
October 14, 2025, No. 26-1039 (Fed. Cir.). Plaintiff’s two Statements Concerning Discrimination
and Plaintiff’s Informal Brief indicate that Plaintiff asserted claims against Defendant Department
of Agriculture for discrimination by failing to reasonably accommodate Plaintiff’s disability, for
Case 2:26-cv-00123-GJF-DLM Document 7 Filed 02/05/26 Page 3 of 4

4
retaliation, and for hostile work environment. (See Docs. 5; 9; 14.) Plaintiff also asserts that the
Merit Systems Protection Board erred by failing to consider all the evidence. It appears that
Plaintiff is sufficiently able to present her claims against Defendant Department of Agriculture and
her assertions regarding the Merit Systems Protection Board, none of which appear to be complex
issues. Plaintiff’s Motion for appointment of counsel and the documents filed with the United
States Court of Appeals for the Federal Circuit show that she can do legal research, identify the
relevant legal standards and clearly present her arguments to the Court. The Court refers Plaintiff
to the District of New Mexico’s Guide for Pro Se Litigants (October 2022) which, on page 6, lists
resources for legal representation.
IT IS ORDERED that Plaintiff’s Motion for Appointment of Counsel (Doc. 6) is
DENIED.
_______________________________________
DAMIAN L. MARTINEZ
UNITED STATES MAGISTRATE JUDGE
Case 2:26-cv-00123-GJF-DLM Document 7 Filed 02/05/26 Page 4 of 4