dissenting:
I would not reach the merits of this appeal because this case is not properly before us. We lack jurisdiction to hear an interlocutory appeal from an order denying appointment of counsel in a Title VII case. Therefore, I respectfully dissent.
We are a court of limited jurisdiction and have no power to reach out beyond our jurisdiction to correct errors. The Supreme Court has recently cautioned that “interlocutory orders are not appealable ‘on the mere ground that they may be erroneous.’ ” Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 at 378, 101 S.Ct. 669 at 675, 66 L.Ed.2d 571 (1981) (Risjord), quoting Will v. United States, 389 U.S. 90, 98 n.6, 88 S.Ct. 269, 275 n.6, 19 L.Ed.2d 305 (1967). The order from which Bradshaw appeals satisfies neither 28 U.S.C. § 1291, nor the collateral order exception as set forth in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949) (Cohen). Therefore, we have no jurisdiction to decide the case.1
The Supreme Court has emphasized the strong policy behind the rule that appeals are to be made only following final judgment on the merits.2 Similarly, the Court *1321has stressed that the Cohen exception is narrow. Bradshaw has not carried her heavy burden of showing that the order appealed from falls within the “small class” of orders appealable under the Cohen exception. Cohen, supra, 337 U.S. at 546, 69 S.Ct. at 1225.
In Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 312 (1978) (Coopers & Lybrand), the Court set forth the requirements that an order must meet to be appealable under Cohen : “[T]he 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. This language does not, as the majority implies, alter the Cohen test. These three requirements are merely a different formulation of the Cohen “too important to be denied review and too independent of the cause itself” language quoted by the majority. Ante at 1306. See Cohen, 377 U.S. at 546, 69 S.Ct. at 1226. The majority’s quotation from Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977), suggests that the Cohen “too important” language requires courts to determine the significance of the substantive question being appealed. Coopers & Lybrand makes it clear that the “too important” language refers to whether the appellant can obtain review of the question after final judgment. The majority’s use of this language from Caston is indicative of the fundamental error of the majority’s whole approach. The majority appears to believe that we can accept jurisdiction when we perceive an injustice or when an area of law that we consider important is involved. Our appellate jurisdiction depends neither on the magnitude of the error below, nor on where the particular claim falls in each individual judge’s pecking order of significant areas of law.
Nor can I agree with the majority that the nature of Title VII cases, as important as they are, necessarily provides for interlocutory appeal of this order. Congress has determined that finality should be the prerequisite for appellate jurisdiction. Congress has not expanded appellate jurisdiction to reach this denial of appointment of counsel, though it certainly could have done so when it enacted the provision of Title VII permitting the district courts to appoint counsel in Title VII cases. See 42 U.S.C. § 2000e-5(f)(l). Further, Congress did not make appointment of counsel a matter of right, but rather left it to the discretion of the district courts. Therefore, Congress must have anticipated that some Title VII cases would be prosecuted in propria persona.
I
I turn now to the application of the Coopers & Lybrand analysis. I agree with the majority that the order denying counsel, at least under the facts of this case, was final. This is the only one of the three Coopers & Lybrand requirements that is clearly'Satisfied in this case.
It is not necessary for me to rest my position on the separability from the merits requirement, because the third requirement is so obviously lacking. I observe, however, that there are problems with the majority’s *1322holding that the order is separable from the merits. One of the purposes of this requirement is to preclude appeals which enmesh the court of appeals in the merits of a case at an early stage. Coopers & Lybrand, 437 U.S. at 469, 98 S.Ct. at 2458. In determining whether to appoint counsel for a Title VII plaintiff, a district judge must make some determination of whether the plaintiff’s claim has merit. See Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977).
It is true that a district judge must make a similar determination in deciding whether to grant leave to proceed in forma pauperis. Orders denying such leave are appealable. Lipscomb v. United States, 301 F.2d 905 (9th Cir. 1962). The involvement with the merits in the in forma pauperis situation, however, is slight. The standard is merely whether the plaintiff’s case is frivolous or malicious. 28 U.S.C. § 1915(d); Torres v. Garcia, 444 F.2d 537 (9th Cir. 1971).
It is quite possible that a district judge should become much more involved in the merits in determining whether to appoint counsel than he does in determining whether to grant leave to proceed in forma pauperis. First, the district judge should hesitate to appoint counsel to a losing case. See Maclin v. Freake, 650 F.2d 885 at 887-888 (7th Cir. 1981). I know of no provision for the payment of losing counsel appointed under Title VII. See Beckett v. Kent County, 488 F.Supp. 70, 74 n.4 (W.D.Mich. 1980); Sol v. I.N.A. Ins. Co., 414 F.Supp. 29, 30 (E.D.Pa.1976). To appoint counsel to a non-frivolous, but likely losing case without compensation creates significant, possibly constitutional, problems.3 Second, the district judge may examine the factual issues in the case to determine whether counsel is needed to investigate and marshall the facts. If the litigant can handle the factual issues, it may not be necessary to appoint counsel. See Maclin v. Freake, supra, at 887-888.4
Thus, a district judge may be justified in examining the merits closely to determine whether the plaintiff’s case is substantially likely to succeed. Of course, in his calculations, the district judge should assess the likelihood of success of the case when prosecuted by counsel, rather than in propria persona. The district judge should balance the hardship to counsel with the benefit to the plaintiff. To determine whether a district judge’s decision on the appointment of counsel constitutes an abuse of discretion, we would have to become at least somewhat enmeshed in the merits.
I must take issue with the majority’s unfortunate contention that an EEOC determination of reasonable cause will usually be sufficient to establish the “merit” requirement and thus obviate the need to become enmeshed in the facts. The majority cites no authority for its conclusion that an EEOC reasonable cause determination creates a presumption in favor of the plaintiff. Instead, it relies on the EEOC’s brief in this ease. Ante at n.20. Although there is little authority on the pre-trial significance of EEOC determinations, a reasonable interpretation is that an EEOC determination, whether finding reasonable cause or not, is significant only to establish jurisdiction for a civil action pursuant to Title VII.
*1323See 42 U.S.C. § 2000e-5(f)(l); Hyatt v. United Aircraft Corp., 50 F.R.D. 242, 246 n.4 (D.Conn.1970).
A second problem arises with the majority’s treatment of the significance of EEOC proceedings. The majority takes the position that an EEOC finding of reasonable cause establishes the merit of the plaintiff’s case for the • purpose of appointment of counsel, but that an EEOC determination of no reasonable cause fails to establish lack of merit. Ante at 1305, 1309 & n.20. An EEOC finding of no reasonable cause is not a jurisdictional bar to the filing of a civil suit under Title VIL. McDonnell Douglas v. Green, 411 U.S. 792, 798-99, 93 S.Ct. 1817, 1822-23, 36 L.Ed.2d 668 (1973). This rule is based on jurisdictional considerations, however, not on any notion that findings of no reasonable cause are inherently more suspect than findings of reasonable cause. See id. The majority fails to offer any explanation for its disparate treatment of these two EEOC findings.
The majority would permit a plaintiff to attack an EEOC determination of no reasonable cause on the merits. Ante at n.20. This would require pre-trial involvement with the merits of the ease. Under the majority’s view, if the district court still determined that there was insufficient merit to the case to appoint counsel, the plaintiff could take an interlocutory appeal. We would then necessarily become enmeshed in the factual issues raised in the plaintiff’s attack on the EEOC’s determination, in violation of the requirements of Coopers & Lybrand.
Inexplicably, the majority would not accord a defendant the same right as a plaintiff to attack the merits of an unfavorable EEOC finding. The majority would then compound this inequity by requiring this unchallenged EEOC determination of reasonable cause to satisfy the merit requirement. Thus, according to the majority’s reasoning, the district judge may become enmeshed in the facts at an early stage only when it may benefit the plaintiff. If it may benefit the defendant, it cannot be done. Further, the majority bootstraps its prohibition of a defendant’s attack on the merits of an EEOC determination into the plaintiff’s satisfaction of the “separability” element of Coopers & Lybrand. But, by virtue of the majority’s holding, a plaintiff may still appeal a denial of appointment of counsel after he has attempted to attack an unfavorable EEOC finding, even though the separability element is not satisfied. This is not defensible.
II
I would hold that Bradshaw has failed to show that the order denying her counsel is effectively unreviewable on appeal from a final judgment. Absent this showing, the order is not appealable. An appealable order must involve “an asserted right the legal and practical value of which would be destroyed if it were not vindicated before trial.” United States v. McDonald, 435 U.S. 850, 860, 98 S.Ct. 1547, 1552, 56 L.Ed.2d 18 (1978) (emphasis added). The claimed right must be such that “denial of immediate review would render impossible any review whatsoever . . .. ” United States v. Ryan, 402 U.S. 530, 533, 91 S.Ct. 1580, 1582, 29 L.Ed.2d 85 (1971) (emphasis added).
This requirement is very narrow. It is not sufficient that the appellant show that there is some injury, or that the erroneous order will taint the rest of the proceedings. Rather, the appellant must show that the order necessarily causes injury that will be irreparable unless appealed immediately.
To illustrate the point, a collateral order rejecting a criminal defendant’s claim of double jeopardy is immediately appealable because if he is correct, he has, the Court has held, the right not to be put to trial. To require him to wait until final judgment would result in the destruction of his right not to be put to trial. Abney v. United States, 431 U.S. 651, 97 S.Ct. 2034, 52 L.Ed.2d 651 (1977). Similarly, a criminal defendant denied bail may appeal immediately. Stack v. Boyle, 342 U.S. 1, 72 S.Ct. 1, *132496 L.Ed. 3 (1951). The right he is asserting is to be free until he is convicted. This right cannot be preserved if he is forced to wait until after that conviction to appeal. See Risjord, 449 U.S. at 376, 101 S.Ct. at 675. In both situations, the rights sought to be vindicated are extinguished by the time a final judgment is entered.
Conversely, several kinds of orders are not immediately appealable because no rights are extinguished, even though the orders, if erroneous, will taint the proceedings or may prejudice one of the parties. For example, the denial of a motion to disqualify an attorney, Risjord, and the denial of a motion for recusal of a judge, United States v. Washington, 573 F.2d 1121 (9th Cir. 1978), are not immediately appeal-able. In both of these situations, the risk is run that a full trial will be conducted under the taint of an erroneous order that will require the trial to be repeated. Further, an erroneous discovery order may compel the production of privileged information that might seriously prejudice the disclosing party. Nonetheless, discovery orders are generally not appealable before final judgment. Legal Aid Society v. Dunlop, 618 F.2d 48, 51 (9th Cir. 1980) (per curiam).
These two lines of cases can be distinguished. In the cases involving appealable interlocutory orders, the appellant could receive no adequate remedy on appeal after judgment. He would already have lost the rights he seeks to preserve. In the cases in which orders have been held non-appeala-ble, the appellant can generally be made whole after trial by being granted a new trial. Bradshaw has this same remedy available to her after trial. Forcing her, even erroneously, to proceed to trial without an attorney does not deprive her forever of any right nor cause her irreparable harm. Unlike a litigant erroneously denied leave to proceed in forma pauperis, Bradshaw may continue her suit. By proceeding to trial without counsel, she forfeits no right. I concede that an erroneous order denying counsel may taint the rest of the proceedings. If Bradshaw loses, the mistake would likely be reversible error on appeal. It is conceivable that Bradshaw may suffer some residual harm, though this is speculative at best. Possibly, she may make some erroneous tactical decision that will prejudice her on retrial with counsel. It is also possible, however, that she will lose on the merits without prejudicing herself on retrial or that she will prevail without counsel. I fail to see the “inherent prejudice” on which the majority relies. The Supreme Court has stated that before it will find an order effectively unreviewa-ble after a final judgment, there must be a showing of some concrete, irreparable injury, not merely a possibility of injury. Ris-jord, 449 U.S. at 375-76, 101 S.Ct. at 674-75. The majority has failed to point to a single concrete injury that is irreparable within the meaning of Cohen and its progeny. Speculation simply will not suffice.
I recognize the importance of the appointment of counsel in appropriate Title VII cases. One prejudiced by the failure of a district judge to appoint counsel is not left with appeal after judgment as his or her only avenue of relief. Appellate assistance can be requested by filing a petition for a writ of mandamus. See 28 U.S.C. § 1651; Bauman v. United States District Court, 557 F.2d 650 (9th Cir. 1977). But Bradshaw requests review by appeal. We have been left with clear guidelines concerning this jurisdiction, however. The majority has overstepped the bounds described by those guidelines. In particular, it has changed the Coopers & Lybrand requirement that the order be effectively unre-viewable on appeal to a requirement that the appellant show a possibility of some prejudice by having to wait until after final judgment to appeal. By relaxing or eliminating the Coopers & Lybrand requirement, the majority is doing what it perceives to be justice in this case. The next case may present an order for which an immediate appeal may not seem so just to the majority, but the appellant may cite the majority’s opinion in this case to make a tenuous *1325showing of prejudice sufficient to obtain an interlocutory appeal. We are better advised to adhere to sound legal principles than to change them to fit our perception of how a particular case should be decided.
Ill
I agree with the majority that we ought to be concerned about judicial economy. I cannot agree that its decision in this case is economical. One side, the losing side, always has an interest in immediately appealing orders. If it can vindicate its views immediately, it either will not have to continue in the lawsuit at all or will be able to proceed without the possibility of retrial. Thus, to one side, immediate review will always seem economical. Congress, by enacting section 1291, has mandated that we hear these appeals after final judgment.
Judicial economy is preserved by the final judgment rule which generally requires that the appeals in one case be heard at one time, after final judgment. Thus, only one appeal and, if necessary, only one retrial is required. By permitting interlocutory appeals, we only add to the number of appeals, increase the time spent by the parties on appeal and on the case as a whole, and delay the proceedings in the district court.' I cannot agree that the majority has struck a blow for judicial economy in this case when it has relaxed the requirements for interlocutory appeals.
The majority’s suggestion that plaintiffs will not appeal from proper denials of appointment of counsel is unreasoned. The majority’s entire premise is that plaintiffs without attorneys are unable to make correct legal determinations for themselves. Yet, the majority assumes that such plaintiffs will be able to assess the correctness of a district court’s ruling and their likelihood of success on appeal. More likely, they will think that any ruling made against them is wrong. Thus, they will appeal from correct rulings as often as incorrect ones.
Further, a plaintiff’s interest in pursuing an appeal may be substantial. A plaintiff, particularly one with a weak ease, may be able to force a settlement by interposing appeals and otherwise dragging out the litigation. As legal fees increase, the defendant may become more interested in paying off the plaintiff than in paying his or her attorneys. Thus, the majority has created a delaying tactic, which does not serve judicial economy and which may serve as a weapon in a strike suit.
Because the harm that Bradshaw may suffer is both speculative and repairable after appeal from a final judgment, I would hold that the order denying appointment of counsel in a Title VII action is not effectively unreviewable on appeal from a final judgment and therefore is not appealable until final judgment. I would dismiss the appeal for want of jurisdiction.
. The Tenth Circuit recently took this position in Cotner v. U. S. Probation Officer Mason, 657 F.2d 1390 (10th Cir. 1981). I do not hesitate to reach this conclusion simply because some other circuits have, in my judgment, incorrectly reached the opposite conclusion. The opinions cited by the majority, at footnote 11, contain so little analysis that they can hardly be considered persuasive. Some rely exclusively on Caston v. Sears, Roebuck & Co., 556 F.2d 1305 (5th Cir. 1977). Caston, which misconstrues the Cohen doctrine, contains only one paragraph of analysis. While the majority more than makes up for this paucity of reasoning, I find its analysis faulty.
. The Supreme Court has recently discussed the importance of the final judgment rule:
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 *1321the 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 “avoiding] the obstruction to just claims that would come from permitting the harassment 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.” Cobbledick v. United States, 309 U.S. 323, 325 [60 S.Ct. 540, 541, 84 L.Ed. 783] (1940)____ The rule also serves the important purpose of promoting efficient judicial administration. Ei-sen v. Carlisle & Jacquelin, 417 U.S. 156, 170, 94 S.Ct. 2140, 2149, 40 L.Ed.2d 732 (1974).
Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 at 374, 101 S.Ct. 669 at 673, 66 L.Ed.2d 571 (1981).
. Whether the appointment of counsel provision violates the Thirteenth Amendment is open to question, and I express no view on it. See White v. United States Pipe & Foundry Co., 646 F.2d 203, 205 n.3 (5th Cir. 1981). I merely observe that in the exercise of his discretion in appointing counsel, the district judge may consider the possibility that an attorney may have to devote substantial time in a complex area of the law without compensation.
. The majority makes much of an in propria persona litigant’s inability to handle complex legal problems. I agree that the district judge should consider this in determining whether to appoint counsel. I observe, however, that Bradshaw has now successfully prosecuted two appeals in this court in her two attempts. Many attorneys have not fared as well. Further, the defendants in this case, who are represented by counsel, conceded the jurisdictional issue that has divided us so sharply. Thus, it would appear that lack of counsel does not inherently prejudice a party.