Payton Randle v. Victor Welding Supply Company and Norman Carlson, Director of Federal Industries , 664 F.2d 1064 ( 1981 )

PER CURIAM.

This is an appeal from a district court order denying a pro se plaintiff’s motion for appointment of counsel in a civil action. The case is presently before- the court for consideration of the court’s own motion to dismiss for lack of appellate jurisdiction.¹

Plaintiff, a former inmate of the Federal Correctional Institution at Marion, Illinois, brought this action seeking damages for injuries he sustained in an industrial accident while participating in a prison work program. After several unsuccessful attempts to retain private counsel on a contingency fee basis, plaintiff filed his own complaint and moved for appointment of counsel pursuant to 28 U.S.C. § 1915(d).² Viewing plaintiff’s complaint as stating essentially a products liability claim, and noting that it was apparently of insufficient merit to warrant private counsel’s acceptance of it on a contingency basis, the district court concluded that counsel should not be appointed under § 1915(d) and denied the motion. This appeal followed.

28 U.S.C. § 1291 vests the Courts of Appeals with jurisdiction over “all final decisions of the district courts . . . except where a direct review may be had in the Supreme Court.” This language has generally been construed to mean that an appeal may not be taken under this section until there has been “a decision by the District Court that ‘ends the litigation on the merits and leaves nothing for the court to do but execute the judgment.’ ” Coopers & Lybrand v. Livesay, 437 U.S. 463, 476, 98 S.Ct. 2454, 2461, 57 L.Ed.2d 351 (1978), quoting Catlin v. United States, 324 U.S. 229, 233, 65 S.Ct. 631, 633, 89 L.Ed. 911 (1945); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373, 101 S.Ct. 669, 673, 66 L.Ed.2d 571 (1981). Read in this way, the statute furthers the important policy of avoiding piecemeal appeals which delay final resolution of the claim and require a greater allocation of judicial resources. It also stands in recognition of the considerable deference to which a district judge is entitled “as the individual initially called upon to decide the many questions of law and fact that occur in the course of a trial.” Firestone, 449 U.S. at 373, 101 S.Ct. at 673.

The order appealed from in this case clearly fails to satisfy this rule. The refusal of the district court to appoint counsel, while it may make proceeding more difficult, does not end the litigation on the merits. The pro se litigant remains free to present his claim to the court on his own.

Despite this fact, a number of circuits, including this one, have concluded that such an order is appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). Jones v. WFYR Radio/RKO General, 626 F.2d 576 (7th Cir. 1980);³ Ray v. Robinson, 640 F.2d 474 (3d Cir. 1981); Hudak v. Curators of the University of Missouri, 586 F.2d 105 (8th Cir. 1978), cert. denied, 440 U.S. 985, 99 S.Ct. 1799, 60 L.Ed.2d 247 (1979); Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977); Spanos v. Penn Central Transportation Company, 470 F.2d 806 (3d Cir. 1972); Miller v. Pleasure, 296 F.2d 283 (2d Cir. 1961), cert. denied, 370 U.S. 964, 82 S.Ct. 1592, 8 L.Ed.2d 830 (1962). But see Cotner v. U.S. Probation Officer Mason, 657 F.2d 1390 (10th Cir. 1981).

In Cohen, the Supreme Court created a narrow exception to the final judgment rule of section 1291. It specifically held in that case that the Court of Appeals had jurisdiction under § 1291 to review a district court’s order denying a defendant’s motion that the plaintiff in a shareholder’s derivative action be required to post security for costs of the litigation, as required under state law. The Court noted that to postpone review until final disposition of the action would effectively prevent meaningful review altogether, for by that time whatever right to security the defendant may have had would be irretrievably lost. Consequently, the Court concluded that the district court’s order fell 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.” Id. at 546.

Those courts which have permitted appeals from a district court’s refusal to appoint counsel have likewise concluded that the right to appointed counsel is “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.’ ” Caston v. Sears, Roebuck & Co., 556 F.2d at 1308, quoting Cohen, supra. However, in reaching this conclusion, they have failed to recognize that, unlike the question of security in Cohen, the plaintiff’s right to court-appointed counsel can be effectively reviewed after final judgment on the merits.⁴ As the Supreme Court’s recent decision in Firestone Tire & Rubber Co. v. Risjord, supra, makes clear, the unavailability of such review must be demonstrated in order for the collateral order doctrine to apply.

In Firestone, the Court held that an order denying a motion to disqualify the opposing party’s counsel in a civil case is not appealable under § 1291. In so holding, it expressly rejected the argument that such an order fits within the collateral order doctrine enunciated in Cohen. That doctrine, as refined by the Court since Cohen, applies to a narrow class of orders that “conclusively determine the disputed question, resolve an important issue completely separate from the merits of the action, and [are] effectively unreviewable on appeal from a final judgment.” Coopers & Lybrand v. Livesay, supra, 437 U.S. at 468, 98 S.Ct. at 2457. In Firestone, the Court concluded that the order there at issue failed to meet the third of these three conditions. It held that effective review of the district court’s refusal to disqualify counsel could be had on appeal from the final judgment, since at that time, if the Court of Appeals concluded that the district court’s ruling constituted prejudicial error, it could vacate the judgment appealed from and order a new trial. Although the Court acknowledged a party may suffer some delay in being forced to await final judgment before appealing an order ultimately found to be erroneous, it noted that this harm did not “ ‘diffefr] in any significant way from the harm resulting from other interlocutory orders that may be erroneous such as orders requiring discovery over a work-product objection or orders denying motions for recusal of the trial judge.’ ” 449 U.S. at 378, 101 S.Ct. at 675, quoting Armstrong v. McAlpin, 625 F.2d 433, 438 (2d Cir. 1980), judgment vacated, 449 U.S. 1106, 101 S.Ct. 911, 66 L.Ed.2d 835 (1981). To permit appeals of interlocutory orders simply on the ground that they may be erroneous, it stated, “not only would constitute an unjustified waste of scarce judicial resources, but would transform the limited exception carved out in Cohen into a license for broad disregard of the finality rule imposed by Congress in § 1291.” 449 U.S. at 378, 101 S.Ct. at 675-76.

Upon further consideration and in light of Firestone Tire & Rubber Co. v. Risjord, we think the same conclusion applies with respect to an order denying a motion to appoint counsel. That order is no less re viewable upon final judgment than the order considered by the Supreme Court in Firestone.⁵ Cotner v. U.S. Probation Officer Mason, supra. As in that case, if the district court’s ruling is found to constitute prejudicial error, its judgment can be vacated and a new trial ordered. See e. g., Maclin v. Freake, 650 F.2d 885 (7th Cir. 1981). Thus, unlike the question of security in Cohen, the postponement of review here does not result in the effective denial of the right at issue. Compare Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977) (appeal allowed prior to trial where defendant seeks to avoid double jeopardy); Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, 96 L.Ed. 3 (1957) (order denying motion to reduce bail appealable). At worst, in those cases where the district court abuses its discretion in denying a request for appointment of counsel, it merely results in the delay caused by the need to retry the case. As the Court pointed out in Firestone, this potential harm is not sufficient to bring an order within that small class of collateral orders appealable under the Cohen rationale.

We therefore overrule our decision in Jones v. WFYR Radio/RKO General, supra,⁶ and hold in this case that an order denying a motion for appointment of counsel is not immediately appealable, but may be reviewed only on appeal from a final judgment. Accordingly, the instant appeal is dismissed for lack of jurisdiction.

1 . This court is required to consider "independently the question of jurisdiction and dismiss on its own motion when jurisdiction is lacking. Spencer, White & Prentiss Inc. of Connecticut v. Pfizer Inc., 498 F.2d 358 (2d Cir. 1974).

2 . 28 U.S.C. § 1915(d) states:

Proceeding in forma pauperis

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(d) The court may request an attorney to represent any such person unable to employ counsel and may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious.

3 . In Jones v. WFYR Radio/RKO General, supra, this court adopted without discussion the Fifth Circuit’s holding in Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977), that such an order is appealable. Caston relies explicitly on Cohen for this holding.

4 . Only the Third Circuit in Ray v. Robinson, supra, specifically held that an order denying appointment of counsel cannot be effectively reviewed on appeal from the final judgment. The other circuits that have concluded that such an order is immediately appealable have failed to address this aspect of Cohen. For the reasons stated infra, we disagree with the Third Circuit’s conclusion in Ray and conclude that the district court’s refusal to appoint counsel can be effectively reviewed after final judgment.

5 . In Ray v. Robinson, supra, the Third Circuit sought to distinguish Firestone by holding that an order denying appointment of counsel could not be meaningfully reviewed at the conclusion of trial because “a decision on appellant’s need for counsel must be made before the trial if it is to be of any practical effect to him.” 640 F.2d at 477. We are unpersuaded by this reasoning. While it is true that whether or not to appoint counsel must be decided before trial, it does not follow that an erroneous decision on that issue cannot be effectively reviewed at the conclusion of the trial.

6 . Pursuant to Circuit Rule 16, this opinion has been circulated among all judges of this court in regular active service. Only Judge Cudahy favored a rehearing in banc on the question of overruling Jones.