Robert Holt v. J. Paul Ford, Warden

862 F.2d 850, 1989 U.S. App. LEXIS 41, 1989 WL 7

• Court: Court of Appeals for the Eleventh Circuit
• Decided: January 4, 1989
• Docket: 86-8837
• Status: Published

Opinions

KRAVITCH, Circuit Judge:

We have convened in banc to consider whether an order denying a motion for appointed counsel in an in forma pauperis action brought pursuant to 42 U.S.C. § 1983 is immediately appealable under 28 U.S.C. § 1291. We hold that it is not.

I.

Section 1291 provides for appellate review of “final decisions” of the district courts. As a general rule, a district court’s decision is final and appealable under this section only when it “ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.” Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945). Ordinarily, then, a party must raise all claims of error in a single appeal following final judgment on the merits.¹ In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), however, the Supreme Court recognized an exception to the final judgment rule for a “small class” of decisions that “finally determine claims of right separable from, and collateral to, rights asserted in the action, too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated.” Id. at 546, 69 S.Ct. at 1225-26. In Cohen, the Court held that a district court’s refusal to require a plaintiff in a shareholder’s derivative suit to post security for costs was within this “small class” of decisions.

More recently, the Supreme Court has refined the Cohen exception by articulating a three-pronged test to determine whether an order that does not finally resolve a case is nonetheless appealable under section 1291. To qualify for immediate review under this test, a non-final order must “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and be effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). Because an order denying a motion for appointed counsel does not terminate the underlying litigation, it is appealable under section 1291 only if it falls within the Cohen exception. Concluding that such an order fails all three prongs of the Cohen test, we now join eight other circuits in holding that a denial of appointed counsel is not immediately appealable under section 1291. See Miller v. Simmons, 814 F.2d 962 (4th Cir.), cert. denied, — U.S.-, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987); Wilborn v. Escalderon, 789 F.2d 1328 (9th Cir.1986); Henry v. City of Detroit Manpower Dept. 763 F.2d 757 (6th Cir.) (in banc), cert. denied, 474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 (1985); Smith-Bey v. Petsock, 741 F.2d 22 (3d Cir.1984); Appleby v. Meachum, 696 F.2d 145 (1st Cir.1983); Randle v. Victor Welding Supply Co., 664 F.2d 1064 (7th Cir.1981); Cotner v. Mason, 657 F.2d 1390 (10th Cir.1981); Miller v. Pleasure, 425 F.2d 1205 (2d Cir.), cert. denied, 400 U.S. 880, 91 S.Ct. 123, 27 L.Ed.2d 117 (1970).

To satisfy the first requirement of the Cohen test, an order must “conclusively determine the disputed question.” Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458. In other words, “[t]o be appeal-able as a final collateral order, the challenged order must constitute 'a complete, formal and, in the trial court, final rejection’ ” of a claimed right. Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 376, 101 S.Ct. 669, 675, 66 L.Ed.2d 571 (1981) (quoting Abney v. United States, 431 U.S. 651, 659, 97 S.Ct. 2034, 2040, 52 L.Ed.2d 651 (1977)). In Coopers & Lybrand the Court held that an order denying class certification failed the first prong of the Cohen test because it was “inherently tentative” under Federal Rule of Civil Procedure 23(c)(1), which provides that such an order may be “altered or amended before the decision on the merits.” 437 U.S. at 469 & n. 11, 98 S.Ct. at 2458 & n. 11. Recently, the Court has made clear that the reasoning of Coopers & Lybrand extends to all orders that “a district court ordinarily would expect to reassess and revise ... in response to events occurring ‘in the ordinary course of litigation,’ ” Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S.-, 108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988) (quoting Moses H. Cone Memorial Hosp. v. Mercury Constr. Corp., 460 U.S. 1, 12 n. 14, 103 S.Ct. 927, 935 n. 14, 74 L.Ed.2d 765 (1983)), and is not limited to orders entered pursuant to Rule 23. Thus, in Gulfstream Aerospace, the Court held that an order denying a motion to stay or dismiss an action pursuant to the Colorado River doctrine² failed the first prong of the Cohen test for the following reasons:

A district court that denies a Colorado River motion does not “necessarily contemplate” that the decision will close the matter for all time. In denying such a motion, the district court may well have determined only that it should await further developments before concluding that the balance of factors to be considered under Colorado River warrants a dismissal or stay. The district court, for example, may wish to see whether the state-court proceeding becomes more comprehensive than the federal-court action or whether the former begins to proceed at a more rapid pace. Thus, whereas the granting of a Colorado River motion necessarily implies an expectation that the state court will resolve the dispute, the denial of such a motion may indicate nothing more than that the district court is not completely confident of the propriety of a stay or dismissal at that time.

108 S.Ct. at 1137-38 (citations omitted).

The Court’s reasoning in Gulfstream Aerospace convinces us that an order denying appointed counsel fails the first prong of the Cohen test. Like an order refusing to stay or dismiss a federal court action pursuant to the Colorado River doctrine, an order denying appointed counsel does not “close the matter for all time.” Gulf-stream Aerospace, 108 S.Ct. at 1137. Instead, the denial of appointed counsel usually indicates “nothing more than that the district court is not completely confident of the propriety of [court appointed counsel] at that time.” Id. at 1138. If a case, as it develops, reveals itself to be legally or factually more complex than the complaint had indicated, a district court could reconsider a previous decision to deny appointed counsel. In sum, an order denying appointed counsel is one that “a district court ordinarily would expect to reassess and revise ... in response to events occurring ‘in the ordinary course of litigation,’ ” id. at 1137 (quoting Moses H. Cone Memorial Hosp., 460 U.S. at 12 n. 14, 103 S.Ct. at 935 n. 14), a,nd consequently fails the first prong of the Cohen test. See also Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 761-62 (6th Cir.) (in banc) (orders denying appointed counsel are presumptively tentative), cert. denied,

474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 (1985); Appleby v. Meachum, 696 F.2d 145, 147 (1st Cir.1983) (order denying appointed counsel is subject to revision).³

To fulfill the second prong of the Cohen test an order must be “completely separate from the merits of the action.” Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458. Thus, for example, an order denying class certification fails this prong of the Cohen test because it “involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiffs cause of action.’ ” Id. at 469, 98 S.Ct. at 2458 (quoting Mercantile Nat’l Bank v. Langdeau, 371 U.S. 555, 558, 83 S.Ct. 520, 522, 9 L.Ed.2d 523 (1963)). Orders disqualifying counsel in civil cases also are not sufficiently separable from the merits to qualify for interlocutory appeal. Richardson-Merrell, Inc. v. Roller, 472 U.S. 424, 105 S.Ct. 2757, 2765-66, 86 L.Ed.2d 340 (1985).

An order denying a motion for appointed counsel is similarly flawed. A district court has discretionary authority, under 28 U.S.C. § 1915(d), to appoint counsel for indigent litigants in civil cases.⁴ In determining whether to appoint counsel, the district court typically considers, among other factors, the merits of the plaintiffs claim and whether the claim is factually or legally so complex as to warrant the assistance of counsel. See Jackson v. Dallas Police Dept., 811 F.2d 260, 261-62 (5th Cir.1986); Hodge v. Police Officers, 802 F.2d 58, 60-61 (2d Cir.1986); Wilborn v. Escalderon, 789 F.2d 1328, 1331 (9th Cir.1986); Maclin v. Freake, 650 F.2d 885, 887-88 (7th Cir.1981) (per curiam); cf. Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1309 (5th Cir.1977) (merits of case is factor in determining if district court abused discretion in denying appointed counsel in a Title VII case).⁵ Naturally, then, in reviewing a denial of appointed counsel for an abuse of discretion, this court also would have to consider such factors, thereby becoming “enmeshed in the factual and legal issues comprising the plaintiffs cause of action.” Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458. Thus, an order denying appointed counsel fails the second prong of the Cohen test. See Miller v. Simmons, 814 F.2d 962, 966 (4th Cir.), cert. denied, — U.S.-, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987); Wilborn v. Escalderon, 789 F.2d 1328, 1330 (9th Cir.1986); Smith-Bey v. Petsock, 741 F.2d 22, 24-25 (3d Cir.1984); Appleby v. Meachum, 696 F.2d 145, 147 (1st Cir.1983); Miller v. Pleasure, 425 F.2d 1205, 1206 (2d Cir.1970).

The third prong of the Cohen test requires an order to “be effectively unre-viewable on appeal from a final judgment.” Recently, in Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) the Court stressed the stringency of this prong of the Cohen test: “To be appealable as a final collateral order, the challenged order must constitute ‘a complete, formal, and, in the trial court, final rejection,’ of a claimed right ‘where denial of immediate review would render impossible any review whatsoever.’ ” Id. at 376, 101 S.Ct. at 675 (emphasis added) (citations omitted).⁶ Denial of a motion to disqualify counsel did not meet this rigid standard because there was a “plainly adequate” remedy for an erroneous refusal to disqualify: “[S]hould the Court of Appeals conclude after the trial has ended that permitting continuing representation was prejudicial error, it would retain its usual authority to vacate the judgment appealed from and order a new trial.” Id. at 378, 101 S.Ct. at 675. Likewise, an appellate court could remedy the effects of an erroneous denial of appointed counsel by vacating the judgment appealed from and ordering a new trial with appointed counsel.⁷ Postponing review of an order denying appointed counsel does not result in the effective denial of review; consequently, such an order does not satisfy the third requirement of the Cohen test. See Miller v. Simmons, 814 F.2d 962, 966-67 (4th Cir.), cert. denied, — U.S.-, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987); Smith-Bey v. Petsock, 741 F.2d 22, 25-26 (3d Cir.1984); Appleby v. Meachum, 696 F.2d 145, 146 (1st Cir.1983); Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1066-67 (7th Cir.1981); Cotner v. Mason, 657 F.2d 1390, 1391-92 (10th Cir.1981); cf. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (appeal allowed prior to trial where defendant seeks to avoid double jeopardy); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1951) (order denying motion to reduce bail immediately ap-pealable); Roberts v. United States, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (denial of leave to proceed in forma pauper-is immediately appealable);⁸ Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1950) (refusal to require plaintiff to post security for costs immediately appealable).

II. •

In Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir.1977) this court’s predecessor held that a denial of appointed counsel in a Title VII case was immediately appealable under the Cohen exception to the final judgment rule. We see no principled basis for distinguishing orders denying appointed counsel in Title VII cases from such orders in section 1983 cases. See Henry v. City of Detroit Manpower, 763 F.2d 757, 763 (6th Cir.) (in banc), cert. denied, 474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 (1985); Robbins v. Maggio, 750 F.2d 405, 410 n. 6 (5th Cir.1985); Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir.1984).⁹ Thus we doubt the continued viability of Caston. Because the ap-pealability of the denial of counsel in a Title VII case is not before us, however, we decline to address that issue at this time.

The appeal is DISMISSED for lack of jurisdiction.

RONEY, Chief Judge, concurs in Part I and specially concurs in Part II. VANCE, Circuit Judge, dissents, joined by JOHNSON, HATCHETT and CLARK, Circuit Judges. HILL, TJOFLAT, FAY, ANDERSON, EDMONDSON and COX, Circuit Judges, concur in Parts I and II of the majority opinion.

1 . The final judgment rule serves a number of important purposes. It emphasizes the deference that appellate courts owe to trial courts, see Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 374, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981), and "avoid[s] the obstruction of just claims that would come from permitting the harassment and cost of a succession of separate appeals from the various rulings to which a litigation may give rise, from its initiation to entry of final judgment,” see id., 101 S.Ct. at 673 (quoting Cobbledick v. United States, 309 U.S. 323, 325, 60 S.Ct. 540, 84 L.Ed. 783 (1940)). In addition, it “prevents the debilitating effect on judicial administration caused by piecemeal appellate disposition of what is, in practical consequence, but a single controversy.” Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974).

2 . In Colorado River Water Conservation Dist. v. United States, 424 U.S. 800, 96 S.Ct. 1236, 47 L.Ed.2d 483 (1976) the Court held that in exceptional circumstances a federal district court may stay or dismiss an action solely because similar litigation is pending in state court.

3 . In Miller v. Simmons, 814 F.2d 962, 965-66 (4th Cir.), cert. denied, -U.S.-, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987) the Fourth Circuit held that an order denying appointed counsel in a § 1983 case failed the first prong of the Cohen test because it was entered without prejudice and was therefore inherently tentative. We do not think that an order denying appointed counsel is inherently tentative only if it is entered without prejudice. Instead, based on Gulf-stream Aerospace, we agree with the Sixth Circuit that an order denying appointed counsel should be presumed tentative unless expressly made final. See Henry, 763 F.2d at 761-62.

4 . 28 U.S.C. § 1915(d) provides, in pertinent part, that Ttlhe court may request an attorney to represent any such person unable to employ counsel_”

5 . The Eleventh Circuit, in the in banc decision Bonner v. City of Prichard, 661 F.2d 1206, 1209 (11th Cir.1981), adopted as precedent decisions of the former Fifth Circuit rendered prior to October 1, 1981.

6 . In Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) the Court once again stressed that “[t]he collateral order doctrine is a 'narrow exception’ whose reach is limited to trial court orders affecting rights that will be irretrievably lost in the absence of immediate appeal.” Id. at 2761 (emphasis added) (citations omitted).

7 . In Robbins v. Maggio, 750 F.2d 405 (5th Cir.1985), the Fifth Circuit decided that an order denying appointed counsel is effectively unre-viewable on appeal because “there remains a great risk that a civil rights plaintiff may abandon a claim or accept an unreasonable settlement in light of his own perceived inability to proceed with the merits of his case, resulting in the loss of vital civil rights claims.” Id. at 412-13. Initially, we question the validity of this assumption, agreeing with the Fourth Circuit that it is just as "reasonable to believe that a pro se litigant who has the ability to perfect an immediate appeal upon denial of appointment of counsel by the district court would be equally able to raise the denial of appointment of counsel should he be unsuccessful on the merits and take a final appeal in the matter.” Miller v. Simmons, 814 F.2d 962, 967 (4th Cir.), cert. denied, — U.S.-, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987).

•Moreover, even if an order denying appointed counsel causes some § 1983 litigants to abandon their claims, this does not mean that such an order satisfies the third prong of the Cohen test. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the court of appeals took jurisdiction over a district court order denying class certification on the ground that if the order stood, it would be the "death knell" of the case because many plaintiffs would abandon their claims for economic reasons. The Supreme Court reversed, first holding that an order denying class certification did not fall within the Cohen exception, and then explicitly refusing to recognize the “death knell” doctrine as a new exception to the final judgment rule. “[T]he fact that an interlocutory order may induce a party to abandon his claim before final judgment," the Court held, "is not a sufficient reason for considering it a 'final decision’ within the meaning of § 1291.” Id. at 477, 98 S.Ct. at 2462. We think that the Court’s rejection of the "death knell” doctrine as an exception to the final judgment rule also means that an order denying appointed counsel should not be deemed "effectively unreviewable on appeal from a final judgment” simply because there is a chance that a litigant will abandon his claim as a result of the order. But see Robbins, 750 F.2d at 412 n. 11 (Coopers & Lybrand overruled death knell doctrine only in context of denial of class certification); Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1310 n. 22 (9th Cir.1981) (death knell doctrine “entirely different” from Cohen test and does not apply to "[ajbandonment of a claim out of self-recognized inability to litigate a complex civil case”).

8 . The appealability of a denial of appointed counsel to an in forma pauperis plaintiff in a § 1983 case should be distinguished from the appealability of a denial of leave to proceed in forma pauperis. If not granted in forma pau-peris status, an indigent litigant is barred from proceeding at all in district court. Thus, the denial of leave to proceed in forma pauperis is "effectively unreviewable on appeal from a final judgment," Coopers & Lybrand v. Livesay, 437 U.S. 463, 468, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978), as there will be no final judgment from which to appeal. As explained above, however, this is not so when an indigent litigant is denied appointed counsel.

9 . But see Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir.1981).