Henry v. City of Detroit Manpower Dept.

• Citation: 763 F.2d 757
• Decision Date: 22 May 1985
• Docket Number: 82-5009,81-5878,81-5827,Nos. 81-1767,s. 81-1767
• Parties: 37 Fair Empl.Prac.Cas. 1445, 37 Empl. Prac. Dec. P 35,268, 53 USLW 2602 Artell M. HENRY (81-1767), Plaintiff-Appellant, v. CITY OF DETROIT MANPOWER DEPARTMENT, Defendant-Appellee. Douglas L. GORDON (81-5827), Plaintiff-Appellant, v. George WILSON, Al Parke, Dr. Hodge, Defendants-Appellees. Norman E. COX (81-5878), Plaintiff-Appellant, v. UNION CARBIDE CORPORATION, Defendant-Appellee. Ronny Lee PARRISH (82-5009), Plaintiff-Appellant, v. John O. MARSH, Jr., Secretary of the Army, Defendant-Appellee.
• Court: United States Courts of Appeals. United States Court of Appeals (6th Circuit)

Page 757

763 F.2d 757

37 Fair Empl.Prac.Cas. 1445,

37 Empl. Prac. Dec. P 35,268, 53 USLW 2602

Artell M. HENRY (81-1767), Plaintiff-Appellant, v. CITY OF DETROIT MANPOWER DEPARTMENT, Defendant-Appellee.

Douglas L. GORDON (81-5827), Plaintiff-Appellant, v. George WILSON, Al Parke, Dr. Hodge, Defendants-Appellees.

Norman E. COX (81-5878), Plaintiff-Appellant, v. UNION CARBIDE CORPORATION, Defendant-Appellee.

Ronny Lee PARRISH (82-5009), Plaintiff-Appellant, v. John O. MARSH, Jr., Secretary of the Army, Defendant-Appellee.

Nos. 81-1767, 81-5827, 81-5878, 82-5009.

United States Court of Appeals,

Sixth Circuit.

Argued Jan. 14, 1985.

Decided May 22, 1985.

Artell M. Henry, pro se.

John Gleeson, argued, Cravath, Swaine & Moore, New York City, for Henry, Gordon, Cox and Parrish.

George Matish, Kenneth G. King, Frank W. Jackson, Catherine C. McLaughlin, Sharon D. Blackmon, argued, Detroit, Mich., for City of Detroit Manpower Dept.

Douglas L. Gordon, pro se.

Barbara W. Jones, Department of Corrections, Linda G. Cooper, argued, Frankfort, Ky., for Wilson, Parke and Dr. Hodge.

Norman E. Cox, pro se.

E.H. Rayson, argued, Kramer, Johnson, Rayson, Knoxville, Tenn., G. Wilson Horde, Union Carbide Corp., Oak Ridge, Tenn., for Union Carbide Corp.

Ronny Lee Parrish, pro se.

Alexander T. Taft, Jr., U.S. Atty., Louisville, Ky., Peter Loewenberg, Chief, Civilian Personnel Litigation, Office of the Judge Advocate General, Department of the Army, Washington, D.C., for Marsh.

Before LIVELY, Chief Judge, EDWARDS, ^* ENGEL, KEITH, MERRITT, KENNEDY, MARTIN, JONES, CONTIE, KRUPANSKY, WELLFORD and MILBURN, Circuit Judges, and BROWN, Senior Circuit Judge.

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. Sec. 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. Sec. 2000e et seq. ² and in one action brought under 42 U.S.C. Sec. 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 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. Sec. 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. Sec. 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 appellants ⁵ 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. Sec. 2000e-5(f)(1)(B) or pursuant to 28 U.S.C. Sec. 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 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 "avoid[ing] 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...