dissenting:
In Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir.1977), our predecessor court held that the denial of an application for appointed counsel under Title VII is immediately appealable pursuant to 28 U.S.C. § 1291. The Caston court had “little hesitation ’ in reaching this conclusion under the Cohen exception. 556 F.2d at 1308. The majority today seems to have just as little hesitation in reaching the opposite conclusion with regard to suits under section 1983. Because I believe that there is no justification for abandoning the Caston analysis, I respectfully dissent.
I.
I agree with the majority that there is no principled basis for distinguishing between the appealability of denials of appointed counsel in Title VII cases and in section 1983 cases. See Robbins v. Maggio, 750 F.2d 405, 410 n. 6 (5th Cir.1985); Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir.1984). The majority unfortunately responds to this realization by reaching out to cast doubt upon binding precedent on an issue that is not before us, in order to make the law consistent with today’s result. I believe the opposite approach is more appropriate. I would make the result in this case consistent with binding precedent.
A.
Analyzing the appealability of an order denying appointed counsel in section 1983 cases, the majority finds that such an order satisfies none of the three requirements articulated by the Supreme Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949), and Coopers & Lybrand v. Livesay, 437 U.S. 463, 98 S.Ct. 2454, 57 L.Ed.2d 351 (1978). The majority first concludes that an order denying appointed counsel does not “conclusively determine” the question of appointed counsel because such an order is “inherently tentative” and does not “close the matter for all time.” Ante at 871 (quoting Gulfstream Aerospace Corp. v. Mayacamas Corp., — U.S. -, 108 S.Ct. 1133, 1137, 99 L.Ed.2d 296 (1988)).
While this reasoning is initially appealing, it does not withstand closer scrutiny. As Justice Scalia has noted:
A categorical order otherwise qualifying for Cohen treatment does not necessarily *856lose that status, and become “nonfinal,” merely because the court may contemplate — or even, for that matter, invite— renewal of the aggrieved party’s request for relief at a later date. The claim to immediate relief ... is categorically and irretrievably denied.
Gulfstream Aerospace, 108 S.Ct. at 1144 (Scalia, J., concurring) (emphasis in original). I believe that when the district court denied appellant’s motion for appointment of counsel, it denied the motion. See Henry v. City of Detroit Manpower Dept., 763 F.2d 757, 765 (6th Cir.) (in banc) (Contie, Circuit Judge, concurring), cert. denied, 474 U.S. 1036, 106 S.Ct. 604, 88 L.Ed.2d 582 (1985). The district court did not indicate that its order was tentative.1 See Bradshaw v. Zoological Soc’y of San Diego, 662 F.2d 1301, 1306 (9th Cir.1981). In addition, unlike Cohen and Coopers & Lybrand, there is no statute or rule implying that orders denying appointment of counsel are “inherently tentative.” See id.2
Even Gulfstream Aerospace, the primary case relied on by the majority, does not support the majority’s conclusion. Gulfstream Aerospace involved the denial of a motion to stay or dismiss under the Colorado River doctrine because of the pendency of similar litigation in state court. 108 S.Ct. at 1135. The Colorado River analysis involves consideration of a number of factors, including the relative comprehensiveness and progress of the state court and federal court actions. See id. at 1135 n. 1; Noonan South, Inc. v. County of Volusia, 841 F.2d 380, 382 (11th Cir.1988). Thus an order denying a Colorado River motion is “inherently tentative” because the two actions may proceed at different rates, possibly requiring the district court to consider granting the motion at a later date.
Denial of a motion for appointed counsel in a Title VII or section 1983 case does not present an analogous situation. I do not agree with the majority that the denial of court appointed counsel usually indicates nothing more than a lack of complete confidence in the propriety of appointing counsel at the time.3 Denial of court appointed counsel usually indicates that the plaintiff is not going to get court appointed counsel.
The majority believes that if a case “reveals itself” to be more complex than the district court originally believed, then the court can reconsider its previous decision to deny counsel. This overlooks the likelihood that without counsel the complexity, or indeed the merits, of the plaintiff’s case may never be revealed.
The majority’s scholarly analysis of the first prong of the Cohen test has some appeal. I agree that the “inherently tentative” principle applies outside the Rule 23 context. I do not believe, however, that the principle applies to orders denying appointed counsel in section 1983 and Title VII cases. I therefore conclude that such orders satisfy the first prong of the Cohen and Coopers & Lybrand test.
B.
The majority next finds that an order denying a motion for appointed counsel *857fails the second Cohen and Coopers & Lyb-rand requirement that the order be completely separate from the merits. Because district courts typically consider factors such as the merits and complexity of the claim in ruling on motions for appointed counsel, the majority fears that appellate courts reviewing such rulings will become enmeshed in the factual and legal issues comprising the Title VII or section 1983 claim.
I believe we should not depart from the Caston court’s holding that “the refusal to appoint an attorney is collateral to the merits of the case.” 556 F.2d at 1308. While I agree with the majority that orders denying counsel involve consideration of the merits, this consideration does not amount to becoming “enmeshed.” Such rulings merely require courts to determine whether the underlying claim has some merit. See Henry, 763 F.2d at 767 (Krupansky, Circuit Judge, dissenting); Smith-Bey v. Petsock, 741 F.2d 22, 26 (3rd Cir.1984) (Gibbons, Circuit Judge, dissenting); Bradshaw, 662 F.2d at 1308. Consideration of the merits is actually quite minimal, involving a primarily procedural determination of whether the merits will be presented with or without counsel. Bradshaw, 662 F.2d at 1308. An appellate court’s decision on appeal from a denial of counsel also does not affect the district court’s determination of the merits. Id. at 1308-09; see also Robbins, 750 F.2d at 412 (appellate courts “review orders denying counsel in light of facts before the district court when the denial of appointment of counsel was ordered, and not in relation to what ensued at trial”).
While an order denying appointed counsel in civil rights cases implicates the legal and factual issues in the plaintiff’s cause of action, it does not do so in a way sufficient to prevent such an order from meeting the second Cohen requirement.4 As the Ninth Circuit observed such an order
involves only incidental and usually indirect reference to the substance of the plaintiff’s claim. It is not, however, dependent on the merits in a manner that renders it unappealable under section 1291, and does not, under any circumstances, require the court to become “enmeshed” in the issues involved in a determination of the merits.
Bradshaw, 662 F.2d at 1308. I therefore conclude that the type of order in this case meets the second Cohen and Coopers & Lybrand requirement.
C.
The majority holds finally that an order denying appointed counsel in civil rights cases does not satisfy the third requirement of Cohen and Coopers & Lybrand because an appellate court can “remedy the effects” of an erroneous denial of such an order by vacating the judgment on appeal and ordering a new trial with appointed counsel. The majority concludes that an order denying appointed counsel in civil rights cases therefore is not effectively un-reviewable.
This reasoning loses sight of the fact that “the application for the third Coopers & Lybrand requirement is not whether a claim becomes jurisdictionally unreviewable, but whether it becomes effectively unreviewable.” Robbins, 750 F.2d at 413 (emphasis in original); see Henry, 763 at 768 (Krupansky, Circuit Judge, dissenting). I do not believe that we can be confident that pro se litigants can properly evaluate whether an appeal should be taken after a decision on the merits, let alone successfully or even coherently pursue an appeal so that an appellate court may meaningfully review the denial of counsel. See Robbins, 750 F.2d at 413; Bradshaw, 662 F.2d at 1311.
The civil rights law involved in these cases is substantively complex and procedurally labyrinthine, involving shifting burdens of proof and unsettled areas of law. The intricacies of the Title YII burden of proof allocation set forth in Texas Dept. of Community Affairs v. Burdine, 450 U.S. 248, 252-58, 101 S.Ct. 1089, 1093-96, 67 L.Ed.2d 207 (1981), and McDonnell Doug*858las Corp. v. Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 1824-25, 36 L.Ed.2d 668 (1973), and the complexities of section 1983 case law under Parrott v. Taylor, 451 U.S. 527, 101 S.Ct. 1908, 68 L.Ed.2d 420 (1981), Monell v. Department of Social Servs., 436 U.S. 658, 98 S.Ct. 2018, 56 L.Ed.2d 611 (1978), and Owen v. City of Independence, 445 U.S. 622, 100 S.Ct. 1398, 63 L.Ed.2d 673 (1980), cause considerable difficulty for most lawyers and many judges. It is unfair and unreasonable to expect a plaintiff without legal training to present an adequate case in this context. Caston, 556 F.2d at 1308; see Henry, 763 F.2d at 772 (Jones, Circuit Judge, dissenting); Robbins 750 F.2d at 412; Bradshaw, 662 F.2d at 1311-12. I agree with Judge Hill’s statement in Caston that “[t]he decision to deny the assistance of an appointed attorney to a layman unschooled in the law in an area as complicated as the civil rights field is truly too important to be deferred until a resolution on the merits can be had.” 556 F.2d at 1308.
The majority’s holding that orders denying appointed counsel in section 1983 actions are not appealable and its suggestion that Caston should be abandoned would defeat the remedial purposes of Title VII and section 1983. Many meritorious claims will now go without remedy due to abandonment, acceptance of an unreasonably low settlement or pure inability to prosecute these claims at trial. See Robbins, 750 F.2d at 412-13 & n. 11; Bradshaw, 662 F.2d at 1310-11; see also Henry, 763 F.2d at 768 (Krupansky, Circuit Judge, dissenting) (citing congressional statutes designed to insure appointment of counsel for indigents). To delay review of an order denying appointed counsel violates statutory policy under Title VII and section 1983 by depriving plaintiffs of their right to an expeditious determination of their substantive rights under these statutes. See Henry, 763 F.2d at 767-68 & n. 3 (Krupansky, Circuit Judge, dissenting); Bradshaw, 662 F.2d at 1311-12 & n. 25.
The majority places great stock in the ability of appellate courts to remedy the effects of an erroneous denial of appointed counsel. While I share the majority’s faith in our appellate courts, appellate review has its limitations. The most important problem is that where a district court has denied a civil rights plaintiff appointed counsel, the record on appeal probably will not be sufficient to reveal what the plaintiff could have proved if counsel had been appointed. Appellate review cannot function as a protection from an erroneous denial of appointed counsel when there is nothing to review. Even if such plaintiffs somehow managed to obtain a new trial, they would be bound by certain inevitable prejudicial errors committed at the first trial. See Bradshaw, 662 F.2d at 1311-12.
The majority relies almost exclusively on Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981), in its analysis under the third prong of the Cohen test. This reliance is misplaced. Firestone involved the appealability of an order denying disqualification of opposing counsel, which is qualitatively different from an order denying appointed counsel. See Henry, 763 F.2d at 770 (Krupansky, Circuit Judge, dissenting); Ray v. Robinson, 640 F.2d 474, 477 (3d Cir.1981). “Disqualification orders do not result in the inability of litigants to advance through their trial and to raise possible issues of the appropriateness of the disqualification order on appeal.” Robbins, 750 F.2d at 413. As the Supreme Court explained in Firestone itself:
The propriety of the district court’s denial of a disqualification motion will often be difficult to assess until its impact on the underlying litigation may be evaluated, which is normally only after final judgment. The decision whether to disqualify an attorney ordinarily turns on the peculiar factual situation of the case then at hand, and the order embodying such a decision will rarely, if ever, represent a final rejection of a.claim of fundamental right that cannot effectively be reviewed following judgment on the merits.
449 U.S. at 377, 101 S.Ct. at 675.
This is not the case with a denial of a motion for appointed counsel. An order denying disqualification of opposing coun*859sel poses only a minimal and hypothetical danger of prejudice to the party seeking appellate review of that order. See Bradshaw, 662 F.2d at 1312. The aggrieved party can still adequately present its case and pursue an appeal with the assistance of counsel. By contrast, an order denying appointed counsel poses a serious and immediate threat of probably irreparable prejudice. See Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1068 (7th Cir.1981) (Swygert, Senior Circuit Judge, dissenting). I thus find that Firestone is not only distinguishable, but supports the opposite conclusion reached by the majority.
II.
There is no deluge in this court of appeals from denials of court appointed counsel. The policy of judicial economy underlying the majority’s holding cuts both ways. Indeed the Ninth Circuit has explained that permitting an appeal from an order denying appointed counsel serves judicial economy, whether the denial was proper or erroneous. See Bradshaw, 662 F.2d at 1315. In sum, while some kinds of section 1983 and Title VII issues have created burdens on this court, the issue in this case is not one of them.
I conclude that the order in this case satisfies all three requirements of Cohen and Coopers & Lybrand. Although I recognize this as a relatively close case, I would follow Caston and hold that an order denying appointed counsel in section 1983 eases is appealable under section 1291. I therefore would not dismiss the appeal for lack of jurisdiction, and would reach the merits of whether the district court erred in denying appellant’s motion for appointment of counsel.
. The district court’s order states: "The Court declines to appoint counsel to represent the plaintiff in the damage suit above identified."
. Cohen involved a bond statute which expressly provided for reconsideration from time to time. See 337 U.S. at 544, 547, 69 S.Ct. at 1224, 1226. Coopers & Lybrand involved Fed.R.Civ.P. 23, which provides that orders "involving class status 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; see Fed.R.Civ.P. 23(d).
. Other judges have noted that while this proposition is appealing, it cannot be correct.
The ... observation that the decision to deny the appointment of legal counsel for victims of civil rights violations is subject to a trial judge’s change of heart or mind is irrefutably correct. It is this very truism which prompted this controversy; had the initial decision to deny legal counsel assumed the classical status of a final disposition the issue of interlocutory review would be non-existent. Because the precedent articulated by Cohen subsumes the premise that a trial court may at any time, even after judgment, reconsider its decision, it is reasonable to conclude that the Supreme Court’s decision in Cohen contemplated a far more subtle evaluation....
Henry, 763 F.2d at 765 (Krupansky, Circuit Judge, dissenting).
. As the Ninth Circuit has pointed out, other orders that are appealable under Cohen require some reference to the merits. Bradshaw, 662 F.2d at 1309.