Holt v. Ford

• Decision Date: 04 January 1989
• Docket Number: No. 86-8837,86-8837
• Citation: 862 F.2d 850
• Parties: Robert HOLT, Plaintiff-Appellant, v. J. Paul FORD, Warden, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 850

862 F.2d 850

Robert HOLT, Plaintiff-Appellant, v. J. Paul FORD, Warden, et al., Defendants-Appellees.

No. 86-8837.

United States Court of Appeals Eleventh Circuit.

Jan. 4, 1989.

William F. Amideo, Asst. Atty. Gen., Atlanta, Ga., for defendants-appellees.

Appeal from the United States District Court for the Middle District of Georgia.

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK, EDMONDSON and COX, Circuit Judges.

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. Sec. 1983 is immediately appealable under 28 U.S.C. Sec. 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 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. 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 doctrine ² 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." Gulfstream 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), and 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 plaintiff's 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. Koller, 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. Sec. 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 plaintiff's 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 plaintiff's 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...