THOMAS A. CLARK, Circuit Judge:
This is an appeal from denial of petitions for appointment of counsel under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. Appellants are complainants who, having complied with all administrative preconditions to suit and received notice of their right to sue under the Act, would bring suit against their former employers for allegedly unlawful employment discrimination. They individually petitioned the district court for appointment of counsel to represent them, presenting in their applications a variety of circumstances reflecting their own efforts to secure counsel.
We hold that in reaching and in deciding the constitutional issue the district court abused its discretion in the following respects: In the first place, no party to these proceedings has standing to raise the thirteenth amendment question, and the court cannot sua sponte raise the question. Additionally, by not undertaking to exercise his discretionary power of appointment in light of guidelines previously announced by this court, the district court violated a well established principle of constitutional interpretation, that deciding constitutional questions should be avoided if the merits of a case may be settled on nonconstitutional grounds.
Section 706(f)(1) provides in part that, "in such circumstances as the court may deem just," a district court "may appoint" counsel to represent complainants who bring their Title VII claims from the EEOC to the district court.
The court below made no effort to exercise its discretion under Caston. Instead, finding that the statute was capable of an application that raises an arguable issue under the thirteenth amendment,
"Generalizations about standing to sue" may be "largely worthless as such," Association of Data Processing Service Organizations, Inc. v. Camp, 397 U.S. 150, 151, 90 S.Ct. 827, 829, 25 L.Ed.2d 184 (1970), but there is vitality to the notion that constitutional rights may be asserted only by those whose rights are at stake.
Wright, Federal Courts (3d ed.) § 13.
That a lawyer's claims of involuntary servitude, upon appointment against his or her wishes to represent a Title VII complainant, might satisfy the "arguably within the zone of interest" standard, does not relieve some party before this court of the obligation to demonstrate some "injury in fact, economic or otherwise." More so than the "zone of interests" inquiry, the "injury in fact" element of standing lies at the core of article III concepts of the limits of the exercise of the federal judicial power. Cf. Data Processing, 397 U.S. at 151-52, 90 S.Ct. at 829, with Wright, Miller & Cooper, Federal Practice and Procedure: Jurisdiction § 3531, and Tribe, American Constitutional Law, §§ 3-17, 18.
We unhesitatingly conclude that the district court itself lacks standing to assert whatever rights members of the federal Bar might enjoy under the thirteenth amendment.
Avoidance of Constitutional Issues
It ought to go without saying, but apparently the circumstances call for a reminder, that the federal courts should not reach a constitutional question, especially one concerning the validity of an act of Congress, if the merits of the case may be settled on nonconstitutional grounds. See Ashwander v. Tennessee Valley Authority, 297 U.S. 288, 341-56, 56 S.Ct. 466, 480-87, 80 L.Ed. 688 (1936) (Brandeis, J., concurring). Proceeding on the assumption of § 706's validity, the district court might have avoided the necessity of invoking the power of appointment by concluding, under the circumstances relevant to a given application, that appointment of counsel would not be "just," both within the meaning of § 706 and as construed by Caston.
In addition, an appointment, if the circumstances called for one, might not be "involuntary" at all in that the district court might simply have found a lawyer willing to take the case in light of Congress' complementary incentives to private attorney general suits under Title VII, such as the possibility of attorney fees under § 706(k), 42 U.S.C. § 2000e-5(k). The clear thrust of the appointment power was to enlist the aid of the district courts in finding lawyers who would take such cases, whether they (courts and lawyers alike) wanted to engage in such matters or not, the assumption being that Title VII complainants cannot all be expected to find such assistance on their own.
In summary, we conclude that no party to this appeal has standing to raise the issue of § 706's validity under the thirteenth amendment. In addition, we conclude that the district court abused its discretion in reaching any constitutional issue before attempting to conform to the guidelines laid down in Caston. On the strength of the former conclusion, the judgment will be vacated. On the strength of the latter conclusion, we remand and direct that the lower court proceed forthwith to schedule hearings, at the earliest date possible, at which it shall consider such evidence as is relevant in light of Caston's guidelines.
VACATED with directions and REMANDED.
(1) Appellant White stated that, four days before petitioning the district court, he had been turned down by one attorney, because there wasn't "any money in it," and referred to another. R.7. Instead he sought the assistance of the district court.
(2) Appellant Locklear also was turned down by a lawyer, because of the "cost of litigation," before turning to the district court. R.23.
(3) According to Appellant Merriweather, the lawyer he approached told him that he would need about two thousand dollars before taking on his case. He went next to the district court. R.35.
(4) Appellant Kelly stated that she did not consult an attorney before petitioning the district court. R.42.
(5) Appellant Lawson likewise sought out the district court before consulting an attorney. R.60.
351 F.2d at 672, quoting from United States v. Dillon, 346 F.2d 633, 635 (9th Cir. 1965). Accord: Tyler v. Lark, 472 F.2d 1077 (8th Cir. 1973) (civil appointment: § 1983 complaint). If the premise of these opinions is correct, then the proper frame of reference for evaluating any "servitude" imposed by judicial appointment, for purposes of determining whether the appointment is "involuntary servitude" within the meaning of the thirteenth amendment, cannot be confined solely to the circumstances of a given appointment, but must take account of the obligations assumed by the lawyer toward the courts and that of the Bar toward the public. Highly particular circumstances might be relevant to a showing that a court has abused its appointment discretion in taking all of a lawyer's available services for such appointments. But a nonconstitutional basis for invalidating such appointments is apparent, as an abuse of discretion, and this can hardly support the class-wide relief resulting from the district court's invalidation of the statute on its face. In short, the posture of the Bar before the courts and before the public makes it highly improbable that a thirteenth amendment attack on § 706's appointment power, on its face, can ever be sustained, and as for the law as it is applied, thirteenth amendment concerns are invariably subsumed in nonconstitutional considerations.