Lariscey v. U.S.

Decision Date23 November 1988
Docket NumberNo. 88-1322,88-1322
Citation861 F.2d 1267,8 USPQ2d 2007
PartiesEarl Jason LARISCEY, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee. Appeal
CourtU.S. Court of Appeals — Federal Circuit

Earl Jason Lariscey, Bastrop, Tex., pro se.

Vito J. DiPietro, Director, Commercial Litigation Branch, Dept. of Justice, Washington, D.C., submitted for defendant-appellee. With him on the brief were John R. Bolton, Asst. Atty. Gen. and Jeffry H. Nelson. Also on the brief was Chun-I Chiang, Dept. of Justice, of counsel.

Before FRIEDMAN, NEWMAN and ARCHER, Circuit Judges.

PAULINE NEWMAN, Circuit Judge.

Earl Jason Lariscey, appearing pro se, appeals the decision of the United States Claims Court 1 denying his motion for appointment of counsel to assist him in actions before the Claims Court and in patent application proceedings before the United States Patent and Trademark Office. The Claims Court held that it did not have the authority to appoint counsel. The focus of this appeal is Mr. Lariscey's request that the Federal Circuit exercise its authority under 28 U.S.C. Sec. 1915(d) and appoint said counsel. We deny his request that we appoint counsel and affirm the Claims Court's refusal to do so.


Mr. Lariscey is an inmate at the Federal Correctional Institution at Bastrop, Texas. He states, without significant contradiction, that he developed a jig and cutting process now being used at the prison shop to cut Kevlar used in the manufacture of helmets, to certain advantage and cost savings to the government. He states that he has not been compensated for the government's use of his process.

Mr. Lariscey, acting pro se, filed suit in the Claims Court asking that a patent attorney be assigned to prosecute a patent application for him, that the government be enjoined from using his inventions, and that his prison supervisors be enjoined from harassing him. The Claims Court dismissed the complaint as not within its jurisdiction, but allowed him to file an amended complaint asserting claims for violation of the Fifth Amendment's taking clause and for breach of implied-in-fact contract.

The Claims Court also denied without prejudice Mr. Lariscey's motion, made under 28 U.S.C. Sec. 1915(d), for the assignment of counsel, and referred the matter to the Clerk of the Claims Court who advised Mr. Lariscey to contact the Pro Se Subcommittee of the Claims Court Committee of the Bar Association of the District of Columbia. Mr. Lariscey states that no one has been willing to represent him pro bono. He also states that he has been harassed by prison officials for filing this suit, that various legal materials and his drawings of the jig process were destroyed by persons at the prison, and that he needs legal assistance in protecting his rights and interests.


The government argues as a threshold matter that the Claims Court's order is not appealable at this time because it is neither a final decision, 28 U.S.C. Sec. 1295(a)(3) (1982), nor a certified question, 28 U.S.C. Sec. 1292(d)(2) (1982).

There is a split among the regional circuits as to whether the denial of a request for court-appointed counsel in civil actions is immediately appealable under the "collateral order" exception to the final decision requirement of Sec. 1295(a)(3). See Welch v. Smith, --- U.S. ----, 108 S.Ct. 246, 98 L.Ed.2d 203 (1987) (White, J., dissenting from denial of petition for writ of certiorari to consider this issue). Three circuits (the Fifth, Eighth, and Eleventh) have held for immediate appealability of the issue of appointment of counsel. See, e.g., Robbins v. Maggio, 750 F.2d 405, 413 (5th Cir.1985); Slaughter v. City of Maplewood, 731 F.2d 587, 588 (8th Cir.1984); Brooks v. Central Bank of Birmingham, 717 F.2d 1340 (11th Cir.1983). Eight circuits have held against, at least in routine civil litigation (the First, Second, Third, Fourth, Sixth, Seventh, Ninth, and Tenth), although in some types of actions a broader view has been taken, see, e.g., Bradshaw v. Zoological Soc'y of San Diego, 662 F.2d 1301, 1305 (9th Cir.1981) (denial of appointment of counsel in Title VII case immediately appealable); Rincon Band of Mission Indians v. Escondido Mut. Water Co., 459 F.2d 1082, 1083-84 (9th Cir.1972) (order denying Indians appointment of counsel under 25 U.S.C. Sec. 175 immediately appealable as "final decision" under 28 U.S.C. Sec. 1291). Neither the District of Columbia Circuit nor this circuit has ruled on the question.

Although this court and the Claims Court are not bound by the regional circuits' precedent in this matter, we take note that immediate appeal of this most critical underpinning of practical justice will itself serve the interest of justice. In Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), the Court recognized an exception to the final decision rule for "that small class which finally determines 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. The test set out in Cohen and supplemented in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978), details the factors to consider to determine whether the collateral order exception should apply to a particular prejudgment order. To fit the exception, "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." Coopers & Lybrand, 437 U.S. at 468, 98 S.Ct. at 2458; Gulfstream Aerospace Corp. v. Mayacamas Corp., --- U.S. ----, 108 S.Ct. 1133, 1136-37, 99 L.Ed.2d 296 (1988); Richardson-Merrell Inc. v. Koller, 472 U.S. 424, 430-31, 105 S.Ct. 2757, 2760-61, 86 L.Ed.2d 340 (1985). Analysis shows that an order denying a motion for appointment of counsel under 28 U.S.C. Sec. 1915(d) satisfies these three conditions.

The first condition is that the order "conclusively determine the disputed question." The Claims Court told Mr. Lariscey that it will not and can not appoint counsel. There was no equivocation, no aspect awaiting further exploration at trial. The disputed question was conclusively answered, and the answer would, by its nature, govern all further proceedings.

The second factor to be considered is the separability of the substance of the order from the merits of the action.

The basic purpose of the separability requirement is to permit review of important determinations that are truly collateral, i.e., where interlocutory review will not result in unwarranted interference by appellate courts in determinations properly reserved to the district court until completion of the trial, determinations affecting the merits of the cause of action itself.

Bradshaw, 662 F.2d at 1307. In Cohen, the Court cautioned that the collateral order exception should not apply to decisions that are "steps" toward final judgment on the merits. 337 U.S. at 546. Here, a determination of whether Mr. Lariscey is entitled to appointed counsel may affect his ability to pursue his claims successfully, but does not "enmesh" us "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.

It is of course necessary to look at the type and complexity of the claims, in evaluating the request for appointed counsel; but unlike the situation in Coopers & Lybrand, 437 U.S. at 469 n. 12, 98 S.Ct. at 2458 n. 12, in Mr. Lariscey's case it is not necessary to resolve any issue on its merits in order to consider the question of appointment of counsel. Of similar purpose is the Supreme Court's holding, in Roberts v. United States District Court, 339 U.S. 844, 70 S.Ct. 954, 94 L.Ed. 1326 (1950) (per curiam), holding that the denial of leave to proceed in forma pauperis is appealable under 28 U.S.C. Sec. 1291 and Cohen. The Ninth Circuit in Bradshaw, 662 F.2d at 1308, drew an analogy between the appointment of counsel decision and the in forma pauperis determination, holding that neither constitutes a "step toward final disposition of the merits of the case", quoting Cohen, (emphasis in original).

The third condition of immediate appealability is that the rights asserted can not be adequately protected on appeal from the final judgment. If Mr. Lariscey is indeed entitled to counsel, he needs such counsel now, not after the proceedings have been completed without the aid of counsel. At best, the entire proceeding in the absence of counsel would be declared a nullity: not an efficient use of either personal or judicial resources. Moreover, it is far from clear that once the merits had been decided, the absence of counsel would so readily be held harmful. If the petitioner's cause appears, on its face, to have been reasonably presented, the appellate court may never know whether a different or better case could have been presented that would have turned the tide in the indigent litigant's favor. "We consider it evident that the effectiveness of appellate review will be seriously impaired by the very nature of the order [denying counsel]". Bradshaw, 662 F.2d at 1310 (emphasis in original).

Since the order satisfies all three Cohen factors, we hold that denial of the request for appointment of counsel under Sec. 1915(d) is immediately reviewable on appeal. We observe that the Claims Court stayed its proceedings while Mr. Lariscey brought this appeal--suggesting that the Claims Court also recognized the desirability of resolution of this issue before, not after, trial of the merits.


The right of indigents to counsel in criminal matters in the federal courts is guaranteed by the Sixth Amendment. Johnson v. Zerbst, 304 U.S. 458, 58 S.Ct. 1019, 82 L.Ed. 1461 (1938); 18...

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