dissenting.
Though the majority opinion treats the issue fairly and comprehensively, stating as persuasive a ease for appealability as can be made, I nevertheless must respectfully dissent from its holding that these orders denying appointment of counsel are appealable under the “collateral order” exception enunciated in Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949).
The majority places principal reliance on our decisions in Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir.1977), and White v. United States Pipe & Foundry Co., 646 F.2d 203 (5th Cir.1981).
As the majority recognizes, Caston predates the Supreme Court’s decisions in Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981); and Flanagan v. United States, - U.S. -, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984), as well as our own decision in Gibbs v. Paluk, 742 F.2d 181 (5th Cir.1984). The Firestone decision caused the Seventh Circuit, in Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1066 (7th Cir.1981), to overrule its prior decision in Jones v. WFYR Radio/RKO General, 626 F.2d 576, 576 n. * (7th Cir.1980), which, in reliance on Caston, had held orders such as these to be appealable. The Tenth Circuit, relying principally on Coopers and Firestone, has declined to follow our Caston decision. Cotner v. Mason, 657 F.2d 1390 (10th Cir. 1981). The First Circuit, in Appleby v. Meachum, 696 F.2d 145 (1st Cir.1983), approved both Randle and Cotner.
Post-Flanagan, only two Circuits have heretofore spoken to the precise question. In Smith-Bey v. Petsock, 741 F.2d 22 (3d Cir.1984), the Third Circuit felt compelled by Flanagan to reconsider and overrule its earlier decision in Ray v. Robinson, 640 F.2d 474 (3d Cir.1981), which had held appealable orders denying appointment of counsel under 28 U.S.C. § 1915(d), relying in part on Caston. The Smith-Bey Court regarded Flanagan as being “a fortiori” on that issue. 741 F.2d at 25. A contrary position was taken by the Sixth Circuit in Henry v. City of Detroit Manpower Department, 739 F.2d 1109 (6th Cir.1984). However, the Henry opinion regarded Flanagan as being confined to criminal cases, id. at 1116, and hence felt free to rely on prior decisions holding disqualification of counsel in civil cases to be immediately appealable. Id. at 1117-18. We have already rejected this rationale in Gibbs, where the panel felt compelled by Flanagan to depart from several prior decisions of this Court extending Cohen appealability to civil case disqualification of counsel orders. 742 F.2d at 183 n. 5.1
In my opinion, the intervening decisions in Coopers, Firestone, Flanagan and Gibbs have cut the ground from under Caston and this panel should no longer follow it, just as the Gibbs panel felt compelled by Flanagan to depart from our prior decisions dealing with disqualification orders in civil cases. White does not stand in the way of this result, for it does not even address the jurisdictional issue, and is in any event pre-Flanagan.
To apply the test for Cohen appealability to these orders, some initial consideration may appropriately be given to the criteria under which such counsel appointment decisions are made and reviewed.
*415We have stated that “generally speaking no right to counsel exists in § 1983 actions.” Hardwick v. Ault, 517 F.2d 295, 298 (5th Cir.1975). The “no right” language of Hardwick, however, “is subject to limitation when exceptional circumstances exist.” Slavin v. Curry, 690 F.2d 446, 448 (5th Cir.1982). As this is gauged by “the type and complexity of the case, and the abilities of the individuals bringing it,” Branch v. Cole, 686 F.2d 264, 266 (5th Cir.1982), it necessarily “depends upon the facts in each case.” Slavin at 448. “Consequently, the decision whether to appoint counsel properly lies within the sound discretion of the district court.” Id. In Caston we “rejected] the notion that the merits of the claim may not be considered in ruling upon an application for counsel.” 556 F.2d at 1309. Although it is not entirely clear from the opinion, it appears that in Branch we adopted a rule of automatic reversal for instances where a requested appointment of counsel was erroneously denied. 686 F.2d at 267. We also stated in Branch that the propriety of the trial court’s action on a given request for counsel would be reviewed only on the basis of the facts known to the trial court when the challenged ruling was made. Id. at 266.
Three or four characteristics have been authoritatively identified as ones each of which an order not finally disposing of the case on the merits must possess if it is to have Cohen appealability. Three are stated in Coopers as follows:
“... [1] the order must conclusively determine the disputed question, [2] resolve an important issue completely separate from the merits of the action, and [3] be effectively unreviewable on appeal from a final judgment.” 98 S.Ct. at 2458.
In Nixon v. Fitzgerald, 457 U.S. 731, 102 S.Ct. 2690, 2698, 73 L.Ed.2d 349 (1982), the Court noted that “[a]s an additional requirement, Cohen established that a collateral appeal of an interlocutory order must ‘present[] a serious and unsettled question.’ 337 U.S. at 547, 69 S.Ct. at 1226.”
Determination of whether an order meets these tests must be made in light of the rule that “the Cohen doctrine ‘should be strictly construed.’ ” Spiess v. C. Itoh & Co. (America), Inc., 725 F.2d 970, 975 (5th Cir.1984) (quoting Arango v. Guzman Travel Advisors Corp., 621 F.2d 1371, 1378 n. 8 (5th Cir.1980)).
In my opinion, the present orders do not meet the first and fourth Cohen requirements and are also deficient in respect at least to one, and perhaps both, of the second and third requirements.
The first requirement, stated in Coopers as “must conclusively determine the disputed question,” 98 S.Ct. at 2458, was restated in Firestone as “the challenged order must constitute ‘a complete, formal and, in the trial court, final rejection,’ Abney v. United States, 431 U.S. [651] at 659, 97 S.Ct. [2034] at 2040 [52 L.Ed.2d 651] [1977], of a claimed right ____” Firestone, 101 S.Ct. at 675. The Gaston panel did not address this requirement, and the majority opinion here does so only in a eonclusory manner. In Coopers the Court held that an order denying class certification failed to meet the first requirement because “such an order is subject to revision in the District Court.” 98 S.Ct. at 2458. That is plainly the situation here. In each of the present appeals the reason given below for denial of counsel was that the case was not overly complex or beyond the plaintiff’s capacity to represent himself. Should later developments indicate a greater complexity or a lesser capacity, the district court might well appoint counsel. For example, in one of the appeals (Robbins, our No. 83-3240), the district court’s order states “[t]he court finds petitioner is not entitled to counsel at this time in this suit” (emphasis added). Such tentativeness is inherent in the eomplexity/capacity component of the standard for counsel appointment, as well as in “the merits of the claim” component of that standard. Of course, the district court’s order finally denies counsel for at least a temporary period, but that is not the kind of final rejection in the trial court which is envisaged by the first Cohen factor, else that factor would be completely meaningless. This is the obverse of the situation *416referred to in Moses H. Cone Memorial Hospital v. Mercury Construction Corporation, 460 U.S. 1, 103 S.Ct. 927, 935 n. 14, 74 L.Ed.2d 765 (1983) (“virtually all interlocutory orders may be altered or amended before final judgment” and so the first Coopers factor “does not reach all pretrial orders that are formally subject to revision, but only those as to which some revision might reasonably be expected in the ordinary course of litigation.”). As the Apple-by Court stated:
“We do not think that a denial of appointed counsel at the outset necessarily ‘conclusively determine[s] the disputed question____’ [Coopers,] 437 U.S. [463] at 468, 98 S.Ct. [2454] at 2457. We would expect the district court to leave the order ‘subject to revision,’ id. 437 U.S. at 469, 98 S.Ct. at 2458, as, for example, where a possibly meritorious case appears to be developing.” 696 F.2d at 147.2
See also Henry, 739 F.2d at 1121 (Bailey Brown, Senior Circuit Judge, dissenting) (“... the very nature of the question suggests that the determination should not be deemed conclusive for purposes of appeal.”).
The second Cohen factor as articulated in Coopers is that the order “resolve an important issue completely separate from the merits of the action.” Coopers held that a class action determination did not meet this test because such a ruling “generally involves considerations that are ‘enmeshed in the factual and legal issues comprising the plaintiff’s cause of action.’ ” 98 S.Ct. at 2458. Since the propriety of declining to appoint counsel depends in such large part on how complex the facts of the particular substantive claim are and on the degree of arguable merit which the claim has, it would appear that the “completely separate from the merits” test as articulated in Coopers is not met by the present orders. See Appleby, 696 F.2d at 147; Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301, 1332 (9th Cir.1981) (J. Clifford Wallace, Circuit Judge, dissenting).3 However, in Flanagan the Court stated that the second condition for Cohen appealability would not be met in respect to an order disqualifying defense counsel in a criminal case if the “asserted right is one requiring prejudice to the defense for its violation.” 104 S.Ct. at 1057. A possible negative inference from this language is that denial of counsel does meet the second appealability condition if redress for its violation does not require a showing of prejudice in the outcome of the case. If, as Branch indicates, we do not require a showing of prejudice in order to reverse for *417an erroneous denial of counsel, then it is arguable from this language in Flanagan that the second condition for appealability is met. Otherwise, however, it is clear that the second condition is not met.
This brings us to the third condition, that the order “be effectively unreviewable on appeal from a final judgment.” Coopers, 98 S.Ct. at 2458. Firestone restated this condition as one which was met only “ ‘where denial of immediate review would render impossible any review whatsoever.' ” 101 S.Ct. at 675. Flanagan clearly holds that this condition is not met if .review of the order following trial on the merits is under the presumed prejudice standard:
“In sum, as petitioners concede, if establishing a violation of their asserted right requires no showing of prejudice to their defense, a pretrial order violating the right does not meet the third condition for coverage by the collateral order exception: it is not ‘effectively unreviewable on appeal from a final judgment.’ ” 104 S.Ct. at 1056.
The majority suggests that the party denied counsel will for that reason be unable to perfect an appeal or will be discouraged from doing so. I disagree. A party capable of perfecting pro se an appeal from an order denying counsel is likewise capable of so perfecting an appeal after judgment on the merits. As to discouragement, the Court in Coopers said “we hold that the fact that an interlocutory order may induce a party to abandon his claim before final judgment is not a sufficient reason for considering it a ‘final decision’ within the meaning of § 1291.” 98 S.Ct. at 2462 (footnote omitted; emphasis added). See also Firestone, 101 S.Ct. at 675-76 & n. 13. Certainly, the large number of pro se tried cases where pro se appeals have been perfected in this Court should suffice to demonstrate that the denial of appointment of counsel does not effectively prevent, or ultimately wholly discourage, such cases from being actually tried and appealed. See, e.g., Appleby, 696 F.2d at 146 (“... we are unpersuaded by arguments to the effect that pro se plaintiffs are such a frail class of litigants that denial of appointed counsel at the outset effectively terminates the suit____”). See also Branch; Slavin.
In sum, Flanagan makes clear that if failure to appoint counsel is tested on review by a prejudice standard, then it does not meet the second condition for Cohen appealability, while if it is tested on review by a presumed prejudice standard, then it does not meet the third condition. In neither event is the order appealable before final judgment. Flanagan, 104 S.Ct. at 1056-57.
The fourth condition for Cohen appealability is that the challenged order presents a serious and unsettled question. Here, the respective district courts entered the challenged orders under no apparent misapprehension of the correct and well settled legal criteria, and review of the propriety of the denial hence presents only a question of whether, in light of all the particular facts in each discrete case, the district court abused its discretion. Cohen itself indicates that review of such an order should await final judgment. 69 S.Ct. at 1266.
Holding orders of this character appealable before final judgment represents in my view a major and serious invasion of the values sought to be promoted by the final judgment rule. It tends to undermine “the respect due trial judges by” materially increasing “appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation.” Flanagan, 104 S.Ct. at 1054. It makes highly probable multiple appeals in every in forma pauperis civil case in which counsel is requested and denied. Section 1915(d), the only basis for appointment of counsel in these actions, is not confined to civil rights cases, but extends to all civil cases prosecuted in forma pauperis. See Henry, 739 F.2d at 1124-25 (Bailey Brown, Senior Circuit Judge, dissenting). If counsel is requested on filing the action and then denied, there will be an appeal. *418Though there is an affirmance,4 if the request is renewed and again denied when an amended pleading is filed or following discovery or rulings on motions to dismiss or the like, then there will still be another appeal. Perhaps then we will decide to remand, as we do here, because we regard the trial court’s order as insufficiently specific in its reasons for denial.5 If denial again follows, there is yet another appeal, the third prior to trial.6 Such a prospect is the very kind of thing the final judgment rule is designed to prevent.
For these reasons, I respectfully dissent.
. Post -Firestone and pre-Flanagan, the Eighth and Ninth Circuits held orders denying appointment of counsel in civil cases were immediately appealable. Slaughter v. City of Maplewood, 731 F.2d 587 (8th Cir.1984); Bradshaw v. Zoological Society of San Diego, 662 F.2d 1301 (9th Cir.1981). The majority opinion in Bradshaw relied in part on the then rule that disqualification of counsel orders were immediately appeal-able in civil cases. Id. at 1313. It also relied, id. at 1305 & n. 11, on what it regarded as the unanimous rule, at least in Title VII cases; however, in two instances later decisions have overruled those relied on by Bradshaw, see Smith-Bey; Randle, and in another the decision relied on had already been overruled. See 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), overruling 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).
. In this respect, the present appeals are to be contrasted to those where “[t]he district court conclusively determined that question by the decision manifesting its belief that it had no authority to appoint counsel in this type of case.” Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.1981). The Bradshaw court considered that it was faced with a similarly final order, as the denial of counsel there was predicated on the assumption that appointment of counsel was inappropriate in any Title VII case since if the case had merit retained counsel could be obtained because of the attorney fee provisions of Title VII. 662 F.2d 1301 at 1319. Admittedly, Firestone points in the other direction. 101 S.Ct. at 674. But there the character of right at issue (not to have one’s opponent represented by counsel with conflicting interests) was different than that here, and the district court’s order was on its face definitive and purported to govern continued representation throughout the proceeding. Id. 101 S.Ct. at 671-72. It was not an order "as to which some revision might reasonably be expected in the ordinary course” of proceedings in the trial court. Cone, 103 S.Ct. at 935 n. 14.
. Further, counsel is not appointed in cases such as these for any reason other than to help the party for whom the appointment is made prevail on the merits of his case. The appointment has no significance independent of that merits-related purpose. By contrast, the protection to be afforded by the security at issue in Cohen would in no sense be rendered superfluous if the party who requested it were to ultimately prevail on the merits. Similarly, the protections such as those afforded by the Double Jeopardy Clause, the Speech and Debate Clause and the doctrine of executive immunity are designed, in part at least, to shield their beneficiaries from the litigation process, in addition to shielding them from adverse judgments, and are in that sense separate from the merits of the underlying cause of action. See Flanagan, 104 S.Ct. at 1055; Spiess, 725 F.2d at 974-75.
. If we mean it when we say that the appointment decision is committed to the trial court’s discretion, then it follows that in the vast majority of instances we will not ultimately direct an appointment decision different than that made by the trial court. This is certainly in keeping with the source of court authority in these instances, namely, section 1915(d) which relevantly provides only that ‘‘[t]he court may request an attorney to represent any such person [allowed to proceed in forma pauperis ] unable to employ counsel." (Emphasis added.)
. Such remands are not rare. See, e.g., Caston.
. Indeed, the plaintiff may eventually fully prevail at trial, rendering all three pretrial appeals meaningless.