Ficken v. Alvarez

Decision Date10 July 1998
Docket NumberNo. 97-5190,97-5190
Parties77 Fair Empl.Prac.Cas. (BNA) 293, 74 Empl. Prac. Dec. P 45,582, 331 U.S.App.D.C. 37 Ivan FICKEN, Appellant v. Aida ALVAREZ, Administrator, Small Business Administration, Appellee
CourtU.S. Court of Appeals — District of Columbia Circuit

Appeal from the United States District Court for the District of Columbia (No. 96cv00042).

Erik S. Jaffe, appointed by the court, argued the cause as amicus curiae on behalf of appellant.

Ivan Ficken, appearing pro se, argued the cause and filed the briefs.

Stephen R. Martin, II, Special Assistant U.S. Attorney, argued the cause for appellee. With him on the brief were Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence, Assistant U.S. Attorney.

Before: WALD, WILLIAMS, and TATEL, Circuit Judges.

TATEL, Circuit Judge:

A pro se Title VII plaintiff seeks review of a district court's denial of his motion for appointment of counsel pursuant to 42 U.S.C. § 2000e-5(f)(1) (1994). Because this non-final order does not qualify as a collateral order within the meaning of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), we lack jurisdiction to hear this appeal.

I

An attorney, appellant Ivan Ficken worked in various capacities for the Small Business Administration. Ficken claims that after he provided statements to an SBA Equal Employment Opportunity investigator in support of a coworker's discrimination case and filed an age discrimination claim of his own, the SBA retaliated against him, eventually terminating him from the agency.

Having exhausted his administrative remedies, Ficken filed a Title VII suit against the SBA and moved to proceed in forma pauperis. He also moved for appointment of counsel under section 2000e-5(f)(1), which states 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." 42 U.S.C. § 2000e-5(f)(1). Although the district court granted Ficken IFP status, it denied appointment of counsel, applying the test set forth in Poindexter v. FBI, 737 F.2d 1173 (D.C.Cir.1984), which directs district courts to consider "(1) the ability of the plaintiff to afford an attorney (2) the merits of the plaintiff's case; (3) the efforts of the plaintiff to secure counsel; and (4) the capacity of the plaintiff to present the case adequately without aid of counsel," id. at 1185. Acknowledging that Ficken "may well not be able to afford an attorney," and lacked experience with Title VII matters, the court concluded that it could not "justify squandering its limited resources of attorneys willing to take pro bono appointments."

Ficken moved for reconsideration, which a different district court, also applying the Poindexter factors, denied. The court explained that Ficken's abilities as an attorney weighed heavily against appointing counsel, and that "[t]o date, [Ficken] has ably presented his case to the Court." The district court also noted that "[a]t this early stage of the litigation, the pleadings do not permit the Court to find that the merits of [Ficken's] case are so compelling that appointment of counsel is necessary to ensure the vindication of important federal civil rights."

Without waiting for any further proceedings in the district court, Ficken appealed. We appointed amicus curiae on his behalf.

II

This court has jurisdiction of appeals only from "final decisions of the district courts," 28 U.S.C. § 1291 (1994)--decisions that "end[ ] the litigation on the merits and leave[ ] nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 89 L.Ed. 911 (1945). This jurisdictional limitation, however, is not absolute. In Cohen v. Beneficial Industrial Loan Corp., the Supreme Court recognized 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." Cohen, 337 U.S. at 546, 69 S.Ct. 1221. In order to qualify for immediate appeal under Cohen's collateral order doctrine, a district court order must meet three requirements: "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, 57 L.Ed.2d 351 (1978); see, e.g., United States v. Durenberger, 48 F.3d 1239, 1241-42 (D.C.Cir.1995) (citing standard).

This court has never decided whether orders denying appointment of counsel under section 2000e-5(f)(1) qualify as appealable collateral orders. The question has divided our sister circuits. The Third, Fifth, Eighth, and Ninth Circuits allow interlocutory appeal of such orders. See Spanos v. Penn Cent. Transp. Co., 470 F.2d 806, 807 n. 3 (3d Cir.1972); Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir.1977); Slaughter v. City of Maplewood, 731 F.2d 587, 588-89 (8th Cir.1984); Bradshaw v. Zoological Soc'y, 662 F.2d 1301, 1305-18 (9th Cir.1981). The Sixth, Seventh, and Eleventh Circuits read the Cohen/Coopers & Lybrand factors to reach the opposite conclusion. See Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 761-64 (6th Cir.1985) (en banc); Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1065-67 (7th Cir.1981) (per curiam); Hodges v. Department of Corrections, 895 F.2d 1360, 1361-62 (11th Cir.1990) (per curiam). Circuits also disagree about the closely related question of the immediate appealability of orders denying appointment of counsel under the general civil appointment statute, 28 U.S.C.A. § 1915(e)(1) (West Supp.1998) ("The court may request an attorney to represent any person unable to afford counsel."), although a heavy majority find no appellate jurisdiction. See Marler v. Adonis Health Prods., 997 F.2d 1141, 1142 (5th Cir.1993) (citing cases).

Reviewing this extensive debate, we join those circuits that hold that orders denying appointment of counsel under section 2000e-5(f)(1) fall outside Cohen's collateral order doctrine. Most important, because the Poindexter factors as applied to a particular case often change as litigation progresses, denials of motions for appointment of counsel rarely, as a practical matter, "conclusively determine the disputed question." Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. 2454. Consider, for example, a plaintiff's "capacity ... to present the case adequately without aid of counsel." Poindexter, 737 F.2d at 1185. Plaintiffs who file perfectly adequate complaints and respond well to motions to dismiss might be entirely unable to handle discovery or respond to motions for summary judgment. Even pro se plaintiffs with sufficient skills to survive summary judgment are unlikely to be able to try a case.

The other Poindexter factors can likewise change during litigation. With respect to the merits of the plaintiff's case (Poindexter's second factor), or at least the district court's perception of the merits, complaints that appear weak could strengthen as discovery progresses or plaintiffs respond to dispositive motions. Plaintiffs who have adequate financial resources (Poindexter's first factor) to hire counsel for relatively simple cases might be unable to hire more experienced counsel should a case blossom in complexity later in the litigation. Plaintiffs making no efforts to secure counsel (Poindexter's third factor) before filing the complaint might begin contacting lawyers or referral organizations in response to dispositive motions or as trial nears.

Because of the evolutionary nature of the Poindexter factors, district judges often re-evaluate the need for appointed counsel at various stages of the proceedings. Although a court may well appoint counsel at the outset of a case, it might also decide to postpone the decision--for example, until after resolution of dispositive motions--in order to give itself both more time and more information to evaluate the plaintiff's capabilities and the merits of the case. Here, for example, the district court emphasized that its decision rested on its assessment "at this point in the litigation," evaluating the merits only "[a]t this early stage" and Ficken's capabilities "[t]o date." District judges may also believe that given some additional time, pro se plaintiffs might obtain counsel on their own. As the Eleventh Circuit observed in holding orders denying appointment of counsel unreviewable until the close of litigation, such orders "usually indicate[ ] 'nothing more than that the district court is not completely confident of the propriety of [court appointed counsel] at that time.' " Holt v. Ford, 862 F.2d 850, 852 (11th Cir.1989) (en banc) (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S. 271, 278, 108 S.Ct. 1133, 99 L.Ed.2d 296 (1988)); see also Miller v. Simmons, 814 F.2d 962, 965 (4th Cir.1987) ("[S]uch [a] preliminary order does not foreclose future consideration by the trial court of the appropriateness of appointment of counsel as facts and circumstances dictate.").

Other factors contribute to the tentative nature of orders denying appointment of counsel. Because district judges are reluctant to "squander[ ] [their] limited resources of attorneys willing to take pro bono appointments," they often postpone the appointment decision until after dispositive motions as a means of weeding out frivolous or unmeritorious cases. The timing of the appointment may also reflect the district court's assessment of the adequacy of the record for purposes of its own decisionmaking. A district court that initially denies a motion to appoint counsel because it feels comfortable resolving a motion to dismiss on the basis of a record produced by a...

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