Henry v. City of Detroit Manpower Department

BAILEY BROWN, Senior Circuit Judge. The court having voted to consider and having considered this cause en banc, the prior opinion and decision of this court reported at 739 F.2d 1109 (6th Cir.1984) is vacated. These four appeals present a common threshold issue, never before decided by this court, whether the orders of the district courts from which the appeals were taken were “final decisions” within the meaning of 28 U.S.C. § 1291 and, therefore, are appealable as a matter of right.1 These pretrial orders denied plaintiffs’ motions for appointment of counsel in three actions brought under Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq.2 and in one action brought under 42 U.S.C. § 1983.3 We determine that these orders denying the motions for appointment of counsel are not, prior to final disposition of the case in the district court, “final decisions” under section 1291. Therefore, we dismiss these appeals.4 In Henry v. City of Detroit Manpower Department, after filing a charge with the Equal Employment Opportunity Commission (EEOC) complaining that he had been discriminated against in his employment because of his Jamaican origin and after receiving a right-to-sue letter, Henry filed a complaint under Title VII in the district court for the Eastern District of Michigan. He further sought appointment of counsel, which was denied, and Henry then brought this appeal. In Cox v. Union Carbide Corp., after filing charges with the EEOC alleging that he had suffered discrimination in his employment because of his race and after receiving his right-to-sue letter, Cox filed a complaint pursuant to Title VII in the district court for the Eastern District of Tennessee and sought appointment of counsel. The motion for appointment of counsel was denied, and Cox then brought this appeal. In Parrish v. Marsh, Parrish, a civilian employee of the Army, brought a Title VII — 760 — action in the district court for the Western District of Kentucky, alleging that he had been discriminated against in his employment because of his race and that he had satisfied all of the requirements for bringing an action pursuant to 42 U.S.C. § 2000(e)-16. Parrish sought appointment of counsel, the district court denied the application, and Parrish brought this appeal. In Gordon v. Wilson, Gordon, an inmate in a Kentucky penal institution, brought an action for damages in the district court for the Western District of Kentucky under 42 U.S.C. § 1983 against the warden and others. He alleged denial of a constitutional right to adequate medical treatment. Upon being denied his application for appointment of counsel, he brought this appeal. Preliminarily, we set out the positions that are common to the appellants5 and appellees. First, the issue as to the appealability of these orders denying appointment of counsel is the same whether appointment was sought pursuant to 42 U.S.C. § 2000e-5(f)(l)(B) or pursuant to 28 U.S.C. § 1915(d).6 Second, the district courts, in considering an application for appointment of counsel, should at least consider plaintiff’s financial resources, the efforts of plaintiff to obtain counsel, and whether plaintiff’s claim appears to have any merit. Third, upon a review of a district court’s denial of a motion for appointment of counsel, the standard to be applied is whether the trial court abused its discretion. We agree with these positions. In contending that orders denying motions for appointment of counsel are “final decisions” under section 1291, appellants recognize that: “[a] ‘final decision’ generally is one which 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). Appellants, however, contend that the orders involved here fit into the “collateral order” exception to the usual finality requirement as this exception was recognized by Cohen v. Beneficial Industrial Loan Corporation, 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). In Cohen, the question was whether a decision denying a motion to require a plaintiff to post bond in a stockholder’s derivative action was a final decision. The Court stated: This decision appears to fall in that small class which 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. The Court has long given this provision of the statute this practical rather than a technical construction. Id. at 546, 69 S.Ct. at 1225. In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), the Supreme Court was more specific in setting out the requirements of the “collateral order” exception recognized in Cohen. In holding that an order denying certification of a class under Fed.R.Civ.P. 23, is not a final decision under section 1291, the Court stated: To come within the “small class” of decisions excepted from the final-judgment rule by Cohen, the 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. Id. at 468, 98 S.Ct. at 2458 (footnote and citations omitted). In Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), the Court unanimously held that an order denying a motion to — 761 — disqualify counsel of the opposing party in a civil case was not a final decision within the meaning of section 1291. In so doing, the Court explained the reasons for ordinarily requiring a final disposition of the case before appeal: This rule, that a party must ordinarily raise all claims of error in a single appeal following final judgment on the merits, serves a number of important purposes. It emphasizes the deference that appellate courts owe to the trial judge as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial. Permitting piecemeal appeals would undermine the independence of the district judge, as well as the special role that individual plays in our judicial system. In addition, the rule is in accordance with the sensible policy of “avoidpng] the obstruction to just claims that would come from permitting the harrassment 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 judgment.” Id. at 374, 101 S.Ct. at 673 (Marshall, J.) (citations omitted). The Court, applying the formulation as expressed in Coopers & Lybrand for determining whether the order was a “collateral order” for purposes of appeal, concluded that it was not collateral and ruled that the order was effectively reviewable on appeal. Thus Cohen, Coopers & Lybrand and Firestone hold that an order is not a “collateral order” that satisfies the “final decision” requirement of section 1291 unless: (a) it conclusively determines the disputed question; (b) it resolves an important question completely separate from the merits of the action; and (c) it cannot effectively be reviewed on appeal from a final judgment. The most recent decision of the Supreme Court on the issue of the appealability of interlocutory orders is Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984). In Flanagan, the question was whether an order disqualifying defendants’ counsel in a criminal case was appealable under section 1291, and the Court unanimously held that it was not. The Court did not decide in Flanagan whether an erroneous order disqualifying counsel should, on appeal, be presumed prejudicial. The Court then reasoned that if an erroneous order disqualifying counsel is presumed prejudicial, it may be effectively reviewed; if, on the other hand, an erroneous order is not presumed prejudicial, then review of the disqualifying order cannot be done without consideration of the merits of the case. Thus, the Court reached the conclusion that the order disqualifying defendants’ counsel was not an immediately appealable collateral order because the order failed to satisfy either the requirement that the issue on appeal be completely separate from the merits or the requirement that the order not be susceptible to effective review. We will not lengthen this opinion by quoting in more detail the philosophical and practical reasons set out in Coopers & Lybrand, Firestone and Flanagan for giving a narrow application to Cohen’s collateral order exception to the “final decision” requirement to section 1291. These are generally familiar and need not be repeated. Instead, we will proceed to apply the three tests, established by these decisions, that must be satisfied before these orders denying appointment of counsel can be held immediately appealable. I. The first requirement of immediate appealability is that the order denying appointment conclusively determine the disputed question. Appellants argue that orders are “final,” and therefore conclusively determine a matter, if further action is not contemplated, and the fact that the district judge has the power to change the order does not prevent it from being final. Supp. Brief for Appellants at 13 (citing 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure § 3911 (1976)). They further argue that orders are “final” unless they are made tentative by statute or rule or unless the orders are by their — 762 — terms made tentative. Thus, as is the case here, in the absence of a statute, rule or express reservation making the order tentative, appellants would have us presume, for appealability purposes, that further action was not contemplated and that the order was final. We agree that, if further action by the district court is not contemplated, then for present purposes the order may be considered final. We believe, however, that orders denying appointment of counsel should be presumed tentative because these motions are sometimes made before filing of a complaint, see, e.g., Harris v. Walgreen’s Distribution Center, 456 F.2d 588 (6th Cir.1972), and more frequently are made with the filing of a pro se complaint and with little or no showing of plaintiffs efforts to obtain counsel, or of plaintiffs financial ability to retain counsel. Also, there is very little in the record upon which the district judge can, for this purpose, determine whether the claim has merit. We believe that a practical approach to this issue of appealability, as the Supreme Court directs in Cohen, leads to the conclusion that an order denying appointment of counsel does not conclusively determine the disputed question prior to the district court’s final disposition of the case unless the district court’s order was expressly made final. 337 U.S. at 546, 69 S.Ct. at 1225. Accordingly, we determine that orders denying appointment of counsel in these cases cannot, on this appeal, be said to have conclusively determined the disputed question. II. We believe Flanagan makes clear that the other two requirements for application of the collateral order rule are not satisfied here. These requirements are that the order resolve an important question completely separate from the merits of the action and that the order cannot effectively be reviewed on appeal from a final judgment. We do not, as Flanagan did not with respect to an order disqualifying counsel, decide whether an erroneous order denying appointment of counsel should be presumed prejudicial since such is not necessary to our decision here. Further following the rationale of Flanagan: if an erroneous order denying appointment of counsel is, upon appeal of a final judgment, presumed prejudicial, then the order is subject to effective review; if, on the other hand, an erroneous order denying appointment of counsel is not presumed prejudicial, then the order cannot be effectively reviewed without consideration of the merits of the case. We recognize that Flanagan was a criminal ease and that, as the Court therein recognized, the policy against piecemeal appeals is particularly strong in criminal cases. We believe, however, the logic of the Court’s opinion equally applies here. The appellants argue that Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950), in which the Court held that an order denying a habeas corpus applicant the right to proceed in forma pauperis is appealable under section 1291, is relevant here. But, as the Second Circuit stated in 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), overruling Miller v. Pleasure, 296 F.2d 283 (2d Cir.1961), cert. denied, 370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962), in which that court held that an order denying appointment of counsel is not immediately appealable: [T]he statement in Roberts v. United States District Court upholding the appealability of an order denying leave to proceed in forma pauperis is not truly apposite. Such an order closes the door to the courthouse to a plaintiff having a right to enter if he is indigent as he claims; an order declining to request an attorney to represent him simply denies an added facility in the prosecution of his claim which Congress has left to the discretion of the court. The growing burdens on the courts of appeals, with nearly three times as many appeals in 1969 as in 1960, requires [sic] us to look on appeals alleged to come under the “collateral order” doctrine of Cohen v. — 763 — Beneficial Industrial Loan Corp. with greater care than a decade ago. 425 F.2d 1205, 1205 (2d Cir.1970) (citations omitted). III. It is argued that the legislative history of Title VII, which emphasizes the importance of counsel to represent plaintiffs in these often complicated cases, somehow supports the contention that orders denying appointment of counsel are immediately appealable. We believe the answer to this argument is that, if Congress had intended to make these orders immediately appealable, it would have done so. We believe the more reasonable interpretation of this legislative history is that Congress, by providing for appointment of counsel, 42 U.S.C. § 2000e-(5)(f)(l)(B), and for recovery of attorney’s fees by the prevailing party, 42 U.S.C. § 2000e-5(k), in Title VII cases, considered that it had done enough to insure that claimants with meritorious cases would have counsel. It should also be remembered that 28 U.S.C. § 1915(d), the provision for appointment of counsel in cases brought under 42 U.S.C. § 1983, does not have that legislative history; yet it is conceded that the question of appealability is the same whether counsel is sought under Title VII or under 28 U.S.C. § 1915(d). Last, while the availability of appropriate counsel for appointment may vary greatly from district to district, it is well known that the district court’s burden is lightened by the presence of appointed counsel so the district court has a real incentive, for this reason alone, to appoint counsel. It is also argued that actions brought under Title VII and actions brought under 42 U.S.C. § 1983, being civil rights actions, are so important that an exception should be made for them and that orders denying appointment of counsel in such cases should be deemed immediately appealable. Appellants, however, advance no reason why non-civil rights actions for which appointment of counsel may be sought under 28 U.S.C. § 1915(d) should, for immediate appealability purposes, be treated as less important than civil rights cases. We do not believe that we should accept appellants’ invitation to establish a hierarchy of cases as a basis for immediate appealability of orders denying appointment of counsel. This is a legislative function, see Coopers & Lybrand, infra. The Supreme Court, in its unanimous opinion in Coopers & Lybrand, not only refused to treat the importance of the cases as a basis for allowing immediate appeal of an interlocutory order; it also refused to allow the appeal of the interlocutory order on the ground that, if the order stood, it would be the “death knell” of the ease. In Coopers & Lybrand, the district court denied class certification under Fed.R.Civ.P. 23, and the plaintiffs appealed this denial. The court of appeals took jurisdiction under section 1291 on the ground that, if the action was not allowed to proceed as a class action, it would not proceed at all because plaintiffs could not or would not finance the prosecution of the action. The court of appeals then reversed the district court’s denial of class action status. Upon granting certiorari, the Supreme Court reversed, holding the court of appeals had no jurisdiction. The Court stated: In addressing the question whether the “death knell” doctrine supports mandatory appellate jurisdiction of orders refusing to certify class actions, the parties have devoted a portion of their argument to the desirability of the small-claim class action. Petitioner’s opposition to the doctrine is based in part on criticism of the class action as a vexatious kind of litigation. Respondents, on the other hand, argue that the class action serves a vital public interest and, therefore, special rules of appellate review are necessary to ensure that district judges are subject to adequate supervision and control. Such policy arguments, though proper for legislative consideration, are irrelevant to the issue we must decide. There are special rules relating to class actions and, to that extent, they are a special kind of litigation. Those rules do not, however, contain any unique provisions governing appeals. The appealabil — 764 — ity of any order entered in a class action is determined by the same standards that govern appealability in other types of litigation. Thus, if the “death knell” doctrine has merit, it would apply equally to the many interlocutory orders in ordinary litigation — rulings on discovery, on venue, on summary judgment — that may have such tactical economic significance that a defeat is tantamount to a “death knell” for the entire case. Though a refusal to certify a class is inherently interlocutory, it may induce a plaintiff to abandon his individual claim. On the other hand, the litigation will often survive an adverse class determination. What effect the economic disincentives created by an interlocutory order may have on the fate of any litigation will depend on a variety of factors. Accordingly, we hold that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a “final decision” within the meaning of § 1291. Coopers & Lybrand v. Livesay, 437 U.S. 463, 470, 477, 98 S.Ct. 2454, 2458, 2462, 57 L.Ed.2d 351 (1978) (footnotes omitted). The immediate appealability of an order denying appointment of counsel could have some untoward consequences for the pro se plaintiff. If an interlocutory order denying appointment of counsel were, as a collateral order under the Cohen exception, a final decision under section 1291, then it would be final for all purposes. If the order was a separate document under Fed.R.Civ.P. 58 and was entered as provided under Fed.R.Civ.P. 79(a), then the time for filing a notice of such an appeal “as of right” would, under Fed.R.App.P. 4(a)(1), begin to run immediately.7 Herein would certainly lie a trap for the unwary pro se plaintiff. Thus, a decision by this court that orders denying appointment of counsel are final decisions under section 1291 would cause the pro se plaintiff to lose his right to appeal or force him to appeal forthwith. The first possibility creates an unnecessary burden on pro se plaintiffs. The second possibility, which is that pro se plaintiffs aware of their right will immediately appeal the district court’s denial of their motion for appointment of counsel, creates an unnecessary burden on the court of appeals. Moreover, these forced appeals to determine if the district court abused its discretion would frequently be on records that would not reflect the pro se plaintiff’s best case for obtaining appointment of counsel. Accordingly, we hold that this court does not have jurisdiction of these appeals, and the appeals are dismissed. It is so Ordered. Footnotes [1] 28 U.S.C. § 1291 provides in relevant part: "The courts of appeals (other than the United States Court of Appeals for the Federal Circuit) shall have jurisdiction of appeals from all final decisions of the district courts of the United States____” [2] For actions brought under Title VII, 42 U.S.C. § 2000e-5(f)(l)(B) provides in relevant part 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____” [3] 28 U.S.C. § 1915, in addition to authorizing the commencement of any civil action without prepayment of fees and costs upon making an affidavit that plaintiff is unable to pay costs or give security, further provides in relevant part in subsection (d): “[tjhe court may request an attorney to represent any such person unable to employ counsel — ” [4] Five circuits have held that such orders are not immediately appealable: 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), overruling Jones v. WFYR Radio/RKO General, 626 F.2d 576 (7th Cir.1980); 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), overruling Miller v. Pleasure, 296 F.2d 283 (2d Cir.1961), cert. denied, 370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962). Four circuits have held such orders are immediately appealable: Slaughter v. City of Maplewood, 731 F.2d 587 (8th Cir.1984); Brooks v. Central Bank of Birmingham, 717 F.2d 1340 (11th Cir.1983); Bradshaw v. Zoological Society of San Diego, 662 F.2d 4301 (9th Cir.1981); Hudak v. Curators of the University of Missouri, 586 F.2d 105 (8th Cir.1978), cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.Ed.2d 247 (1979); Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir.1977). [5] Appellants were ably represented on appeal by court appointed counsel John Gleeson, of the firm of Cravath, Swaine and Moore of New York City. Mr. Gleeson was formerly a law clerk for a judge of this court. [6] This was expressly held in Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir.1984). [7] Citibank, N.A. v. Data Lease Financial Corp., 645 F.2d 333, 338 (5th Cir.1981); Durkin v. Mason & Dixon Lines, 202 F.2d 425, 425-26 (6th Cir.1953).