* After examining the briefs and appellate record, this panel has determined

unanimously that oral argument would not materiallyassist the determination of this appeal. See Fed. R. App. P. 34(a); 10th Cir. R. 34.1(G). The c ase is therefore submitted without oral argument. 

## F I L E D United States Court of Appeals Tenth Circuit 

### May 3, 2006
Elisabeth A. Shumaker Clerk of Court PUBLISH
UNITED STATES COURT OF APPEALS

TENTH CIRCUIT

MICHAEL J. NELSON,

Plaintiff-Appellant,

v. No. 05-3156 THE BOEING COMPANY,

Defendant-Appellee.

APPEAL FROM THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF KANSAS (D.C. NO. 03-CV-1280-MLB)

Submitted on the briefs. * Lawrence W. Williamson, Jr. of Shores Williamson an d Ohaebosim, LLC, Wichita, Kansas for Plaintiff-Appellant. Timothy B. Mustaine and Jeff P. DeGraffenreid of Fo ulston Siefkin LLP, Wichita, Kansas for Defendant-Appellee.

Before McCONNELL , ANDERSON , and TYMKOVICH , Circuit Judges.

McCONNELL , Circuit Judge.-2-

The general rule in civil cases is that the ineffec tive assistance of counsel is not a basis for appeal or retrial. MacCuish v. United States , 844 F.2d 733, 735 (10th Cir. 1988). If a client’s chosen counsel per forms below professionally acceptable standards, with adverse effects on the c lient’s case, the client’s remedy is not reversal, but rather a legal malpractice law suit against the deficient attorney. Id. at 735-36; Link v. Wabash R.R. Co. , 370 U.S. 626, 634 n.10 (1962). Recognizing this rule, Plaintiff-Appellant Michael J. Nelson asks this Court to craft an exception for Title VII plaintiffs based o n the language of 42 U.S.C. § 2000e-5(f)(1). He further claims that because his trial counsel was ineffective, we should reverse the district court’s grant of sum mary judgment in favor of the Defendant-Appellee, The Boeing Company (“Boeing”). We conclude that Title VII does not create a statutory right to the effect ive assistance of counsel, and
AFFIRM the district court’s decision. I. Background Mr. Nelson, an engineer of Iranian descent, was emp loyed by Boeing from 1996 until he was laid off in 2002 as part of a red uction in force. He filed this lawsuit in 2003, asserting that Boeing discriminate d against him on the basis of his race, national origin, sex, and disability, andin retaliation for previous complaints about harassment, in violation of Title VII of the Civil Rights Act of 1964 (“Title VII”), 42 U.S.C. §§ 2000e to 2000e-17, the Age Discrimination in-3-

Employment Act (“ADEA”), 29 U.S.C. §§ 621-634, and similar Kansas statutes. After filing this lawsuit, Mr. Nelson filed a motion to proceed in forma pauperis and for appointment of counsel. The district courtgranted Mr. Nelson’s motion to proceed in forma pauperis but denied his request for appointed counsel. Mr. Nelson ultimately retained counsel and was repr esented throughout the proceedings before the district court. However, Mr . Nelson claims that his attorney never propounded discovery on Boeing, eventhough Boeing served discovery requests on Mr. Nelson. On October 22, 2 004, Boeing filed a motion for summary judgment. Mr. Nelson’s counsel filed a brief response citing few cases. The district court entered summary judgmentin favor of Boeing on March 1, 2005. Represented by new counsel, Mr. Nelson fi led a timely appeal, claiming that he is entitled to reversal because his counsel rendered ineffective assistance.
II. Discussion Although every client who engages a lawyer has a ri ght of effective assistance of counsel in the sense that legal servi ces falling below acceptable professional standards may give rise to tort liabil ity, the term “effective assistance of counsel” is generally reserved for contexts in w hich the lawyer’s deficient performance provides a basis for reversal on appeal or collateral review. In criminal cases, the Supreme Court has found that ri ght implicit in the Sixth Amendment’s guarantee that “[i]n all criminal prose cutions, the accused shall-4-

enjoy the right . . . to have the Assistance of Cou nsel for his defense.” U.S. Const. amend. VI; see Strickland v. Washington , 466 U.S. 668, 685-86 (1984). In civil cases, the right can arise from the Due Proce ss Clause of the Fifth Amendment, but the only context in which courts hav e recognized a constitutional right to effective assistance of counsel in civil l itigation is in immigration cases. See Ponce-Leiva v. Ashcroft , 331 F.3d 369, 381-82 (3d Cir. 2003) (“[A]liens, l ike criminal defendants and unlike the parties in norma l civil disputes, may obtain relief from the ineffective assistance of counsel”); Mejia Rodriguez v. Reno , 178 F.3d 1139, 1146 (11th Cir. 1999) (noting that alien s have a right to effective assistance of counsel under the Due Process Clause because deportation proceedings implicate an alien’s liberty interest). Mr. Nelson does not argue that the Due Process Clause guarantees Title VII plainti ffs the right to the effective assistance of counsel, but instead contends that su ch a right is embodied in Title VII itself. We disagree. Title VII grants litigants a statutory right to req uest appointed counsel at court expense. The statute provides, in pertinent part: Upon application by the complainant and in such cir cumstances 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). Mr. Nelson claims that this statutory right to request appointment of counsel creates a corresponding statutory right to the effective-5-

assistance of counsel analogous to that arising fro m the Sixth Amendment. Citing McMann v. Richardson , 397 U.S. 759, 771 n.14 (1970), he argues that “th e right to counsel is the right to the effective assistance of counsel.” Mr. Nelson’s argument, however, misses important di fferences between Title VII and the Sixth Amendment. The right to co unsel, and to the effective assistance of counsel, is critical in criminal case s because of the grave and irremediable consequences of a criminal conviction. See Powell v. Alabama , 287 U.S. 45, 69 (1932) (noting that without effective l egal representation, a defendant “faces the danger of conviction”). Similar concern s, based on the “exceptional life-altering character of immigration proceedings, ” explain the extension of the right to the immigration context. Ponce-Leiva , 331 F.3d at 381; see Bridges v.
Wixon , 326 U.S. 135, 154 (1945). By contrast, the Supreme Court has repeatedly held civil litigants “accountable for the acts and omissions of their chosen counsel,” Pioneer Inv. Servs. Co. v. Brunswick Assocs. Ltd. P’ship , 507 U.S. 380, 397 (1993), and has declined to “visit[] the sins of [a] plaintiff’s lawyer upon the defendant,” Link , 370 U.S. at 634 n.10. It does not disparage the importance of rights protected by Title VII to recognize that the consequences of badlawyering in a Title VII case are less grave than wrongful incarceration or deportation. Moreover, a Title VII plaintiff who loses because his attorney’s performance was deficient can file a-6-

legal malpractice lawsuit to recoup the damages he would have been awarded in the Title VII case, including damages to compensate him for the loss of equitable relief such as reinstatement. See Bell v. Eastman Kodak Co. , 214 F.3d 798, 802 (7th Cir. 2000); Sanchez v. U. S. Postal Serv. , 785 F.2d 1236, 1237 (5th Cir. 1986) (per curiam). A legal malpractice award, how ever, cannot release a convicted defendant from jail or absolve him of the stigma of a criminal conviction, nor can it enable an alien to remain in the United States. These are more than just differences in degree. Mr. Nelson argues, in effect, that Title VII’s prov ision for appointed counsel must logically entail a right to “effective assistance” of counsel. But this argument would swallow the rule that parties are re sponsible for the acts of their attorneys. Under 28 U.S.C. § 1915(e)(1), district courts have general authority to appoint counsel for indigent litigants; yet no one would argue this means that deficient legal representation should be a basis fo r reversal on appeal in all civil cases. To be sure, the right to request counsel un der Title VII extends to a broader class of litigants. Unlike § 1915(e)(1), § 2000e-5(f)(1) is not limited to those “unable to afford counsel.” But Congress’s de cision to make appointed counsel available, in the discretion of the court, to a wider class of litigants does not imply that Congress intended to abrogate the lo ng-standing principle of not recognizing a right to the effective assistance of counsel in civil cases. If-7-

Congress had intended to extend an equivalent of th e Sixth Amendment guarantee of effective assistance of counsel to Title VII cas es, upending the ordinary rule in civil cases, Congress would have done so in far mor e explicit terms. The inclusion of a specific right to request counse l does evince “Congress’s ‘special . . . concern with legal representation in Title VII actions.’” Castner v. Colo. Springs Cablevision , 979 F.2d 1417, 1421 (10th Cir. 1992) (quoting Jenkins v. Chem. Bank , 721 F.3d 876, 879 (2d Cir. 1983)). However, Cong ress was not so concerned as to create an actual right to appointed counsel in Title VII cases. See id. at 1420 (“A plaintiff asserting an employment discr imination claim has no constitutional or statutory right to appointed coun sel.”). The Sixth Amendment guarantees the right to counsel in criminal cases and withholds from courts “the power and authority to deprive an accused of his li fe or liberty unless he has or waives the assistance of counsel.” Johnson v. Zerbst , 304 U.S. 458, 463 (1938). Title VII, by contrast, does not create a right to appointed counsel, even for the indigent, but solely the right to request it. Castner, 979 F.2d at 1420. District courts have broad discretion to decide whether to appoint counsel or to require a Title VII litigant to retain private counsel or proceed pro se . Id. By leaving the appointment of counsel to the discretion of the cou rt, Congress contemplated that some plaintiffs would have to represent themselves. It is hard to imagine that-8-

Congress intended to create a right to effective as sistance of counsel when it understood that many Title VII plaintiffs would hav e no counsel at all. As noted above, this holding does not leave a Title VII plaintiff without recourse. If Mr. Nelson’s attorney mishandled his case, he may have a remedy against his attorney in the form of a legal malprac tice lawsuit. Mr. Nelson’s remedy, however, is not against Boeing and cannot t ake the form of reversing the district court’s grant of summary judgment. For the foregoing reasons, we AFFIRM the decision of the district court.