Bradshaw v. Zoological Soc. of San Diego

• Decision Date: 07 December 1981
• Docket Number: No. 79-3051,79-3051
• Citation: 662 F.2d 1301
• Parties: 27 Fair Empl.Prac.Cas. 841, 67 A.L.R.Fed. 889, 27 Empl. Prac. Dec. P 32,296 Nancy S. BRADSHAW, Individually and on behalf of others similarly situated, Plaintiff-Appellant, v. ZOOLOGICAL SOCIETY OF SAN DIEGO, et al., Defendant-Appellee.
• Court: U.S. Court of Appeals — Ninth Circuit

Page 1301

662 F.2d 1301

27 Fair Empl.Prac.Cas. 841, 67 A.L.R.Fed. 889,

27 Empl. Prac. Dec. P 32,296

Nancy S. BRADSHAW, Individually and on behalf of others similarly situated, Plaintiff-Appellant, v. ZOOLOGICAL SOCIETY OF SAN DIEGO, et al., Defendant-Appellee.

No. 79-3051.

United States Court of Appeals Ninth Circuit.

Argued and Submitted Dec. 4, 1980.

Decided Dec. 7, 1981.

Colleen M. O'Connor, E.E.O.C., San Diego, Cal., argued, for plaintiff-appellant; Nancy S. Bradshaw, in pro per., on brief.

Robert W. Bell, Jr., Gary, Cary, Ames & Frye, San Diego, Cal., argued, for defendant-appellee; Donald N. Bauhofer, San Diego, Cal., on brief.

Appeal from the United States District Court for the Southern District of California.

Before WALLACE, SKOPIL, and REINHARDT, Circuit Judges.

REINHARDT, Circuit Judge:

Appellant Nancy Bradshaw, acting in propria persona, filed this sex discrimination action in early 1975, alleging that she was unlawfully denied employment by the Zoological Society in 1969 and again in 1971. ¹ She had earlier filed a charge with the Equal Employment Opportunity Commission (EEOC) and the EEOC had found "reasonable cause" to believe that the Zoological Society discriminated against Bradshaw in denying her application for the position of education director at the Zoo. ²

In April of 1975, the district court granted summary judgment to the Zoological Society, finding Bradshaw's claims under both Title VII and section 1983 to be time-barred. Bradshaw appealed. Nearly three years later, a panel of this court reversed both determinations, and remanded the case for further proceedings. Bradshaw v. Zoological Society of San Diego, 569 F.2d 1066 (9th Cir. 1978).

Proceedings in the district court resumed with the filing of an answer to the complaint in April of 1978. Shortly thereafter, Bradshaw filed a motion for appointment of counsel pursuant to 42 U.S.C. section 2000e-5(f)(1)(B), ³ and for leave to proceed in forma pauperis. ⁴ Supporting affidavits were filed detailing her unsuccessful efforts to obtain an attorney and her impecunious financial situation. The district court granted Bradshaw leave to proceed in forma pauperis and denied her motion for appointment of counsel.

Bradshaw filed a motion for reconsideration of the order denying her request for appointed counsel, supported by a supplemental affidavit, and also sought leave to amend her complaint to plead a class action. ⁵ On September 11, 1978, both of these motions were denied. Bradshaw requested that the district court certify this order for interlocutory appeal pursuant to 28 U.S.C. section 1292(b). The district court declined to do so, and Bradshaw filed a timely notice of appeal from the order of September 11, pursuant to 28 U.S.C. section 1291.

I. JURISDICTION

We are confronted at the outset by three issues relating to our jurisdiction over this appeal. Appellee contends that the order denying leave to amend the complaint to plead a class action is not appealable because not final within the meaning of section 1291 and challenges the appeal of the order denying appointment of counsel on the ground that it was taken from an unappealable order denying reconsideration of the district court's earlier denial of her original motion. We also address a third issue, whether an order denying appointment of counsel is appealable under section 1291.

Although this last issue is not raised by appellee, we are nevertheless obligated to determine the question of our appellate jurisdiction. Rowe v. United States, 633 F.2d 799, 800 (9th Cir. 1980), cert. denied, --- U.S. ----, 101 S.Ct. 2047, 68 L.Ed.2d 349 (1981).

Each of these jurisdictional issues requires reference to the final judgment rule embodied in 28 U.S.C. section 1291, which vests in the courts of appeal "jurisdiction of appeals from all final decisions of the district courts ...." In its general application, this statutory language has been read to restrict appellate jurisdiction to situations where the order of the district court "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). However, the Supreme Court has recognized that some orders by their nature require review at an earlier stage if they are to be effectively reviewed at all. In such cases the Court has said that section 1291 must be given a "practical rather than a technical construction," Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546, 69 S.Ct. 1221, 1225, 93 L.Ed. 1528 (1949) because "a rigid insistence on technical finality would sometimes conflict with the purposes of the statute." Coopers & Lybrand v. Livesay, 437 U.S. 463, 471, 98 S.Ct. 2454, 2459, 57 L.Ed.2d 312 (1978).

The Cohen collateral order doctrine allows appeals from orders that can be said to fall within

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.

337 U.S. at 546, 69 S.Ct. at 1225. This general standard, recently reaffirmed by the Supreme Court, ⁶ guides our inquiry. We recognize that the Cohen doctrine is to be regarded as an exception to the final judgment rule, and thus proceed mindful also of the policies underlying the finality requirement.

A. Denial of Leave to Amend

The order of the district court denying Bradshaw leave to amend her complaint is not appealable. Such orders, as a class, contemplate further proceedings in the district court, and this court has previously held that review is available after the final judgment, into which they merge. Sackett & Kvan, Inc. v. Beaman, 399 F.2d 884, 889 n.6 (9th Cir. 1968). The opportunity to amend, if erroneously denied, may be effectively protected after final judgment on the merits.

In addition to the later availability of effective review, such orders also fail to qualify under Cohen as "a final disposition of a claimed right." 337 U.S. at 546, 69 S.Ct. at 1225. Rather, by the terms of Fed.R.Civ.P. 15(a), an order denying leave to amend is inherently tentative, or, in the words of Cohen, "subject to reconsideration from time to time." ⁷ Id. at 547, 69 S.Ct. at 1226. This same characteristic was deemed significant with regard to orders denying class certification under Fed.R.Civ.P. 23 in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 312 (1978), where the Supreme Court held such orders unappealable under section 1291, in part because they are "subject to revision in the District Court." Id. at 469, 98 S.Ct. at 2458. ⁸ We

reach the same conclusion with regard to the order here. ⁹

B. Order Denying Motion for Reconsideration

There is some confusion concerning which orders Bradshaw is now appealing from. The Zoological Society suggests that Bradshaw must be appealing from the order of September 13, which denied, in the Society's view, a motion for reconsideration of Bradshaw's earlier motions. The Society argues that no appeal may be taken from a denial of a motion for reconsideration, and implies that an appeal from the denial of appointment of counsel is time-barred because the October 3 notice of appeal is more than 30 days after the July 13 denial of the motion for appointment of counsel. The notice of appeal itself states that the appeal is from the order of September 13, but further states that Bradshaw is appealing the denials of her motion for appointment of counsel, motion for reconsideration, and motion for leave to amend. Under the circumstances of this case, we conclude that the motion for "reconsideration" was, in effect, a renewal of those motions on the merits and thus the notice of appeal was timely filed. ¹⁰

C. Order Denying Appointment of Counsel

The principal issue before us is whether orders denying appointment of counsel in Title VII suits are appealable under Section 1291. We find ourselves in agreement with the circuits that have previously addressed this question. All have held such orders appealable, finding them to fall squarely within the Cohen "collateral order" exception to the final judgment rule. ¹¹ The starting point for our discussion is the Court's statement in Cohen 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.

377 U.S. at 546, 69 S.Ct. at 1225-26.

Few of the cases deciding the question of appealability of a refusal to appoint counsel have considered the issue sufficiently difficult to merit prolonged discussion; most take their lead from the Fifth Circuit's opinion in Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977). ¹² The court, relying on Cohen, gave close attention to the nature of the order in reaching its conclusion regarding appealability; to deny review, the court suggested, would impede, rather than further, the ultimate resolution of the litigation:

The refusal to appoint an attorney is clearly "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." Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546 (69 S.Ct. 1221, 1226, 93 L.Ed. 1528) ... (1949). Obviously, the refusal to appoint an attorney is collateral to the merits of the case. The decision to deny the assistance of an appointed attorney to a layman unschooled in the law in an area as complicated as the civil rights field is truly too important to be deferred until a resolution on the merits can be had. Such an individual likely has little hope of successfully prosecuting his case to a...