Ficken, Ivan v. Alvarez, Aida

United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued May 14, 1998 Decided July 10, 1998

No. 97-5190

Ivan Ficken,

Appellant

v.

Aida Alvarez, Administrator,

Small Business Administration,

Appellee

Appeal from the United States District Court

for the District of Columbia

(No. 96cv00042)

Erik S. Jaffe, appointed by the court, argued the cause as
amicus curiae on behalf of appellant.

Ivan Ficken, appearing pro se, argued the cause and filed
the briefs.

Stephen R. Martin, II, Special Assistant U.S. Attorney,
argued the cause for appellee. With him on the brief were
Wilma A. Lewis, U.S. Attorney, and R. Craig Lawrence,
Assistant U.S. Attorney.

Before: Wald, Williams, and Tatel, Circuit Judges.

Opinion for the Court by Circuit Judge Tatel.

Tatel, Circuit Judge: A pro se Title VII plaintiff seeks
review of a district court's denial of his motion for appoint-
ment of counsel pursuant to 42 U.S.C. s 2000e-5(f)(1) (1994).
Because this non-final order does not qualify as a collateral
order within the meaning of Cohen v. Beneficial Industrial
Loan Corp., 337 U.S. 541 (1949), we lack jurisdiction to hear
this appeal.

I

An attorney, appellant Ivan Ficken worked in various
capacities for the Small Business Administration. Ficken
claims that after he provided statements to an SBA Equal
Employment Opportunity investigator in support of a co-
worker's discrimination case and filed an age discrimination
claim of his own, the SBA retaliated against him, eventually
terminating him from the agency.

Having exhausted his administrative remedies, Ficken filed
a Title VII suit against the SBA and moved to proceed in
forma pauperis. He also moved for appointment of counsel
under section 2000e-5(f)(1), which states that "[u]pon applica-
tion by the complainant and in such circumstances as the
court may deem just, the court may appoint an attorney for
such complainant." 42 U.S.C. s 2000e-5(f)(1). Although the
district court granted Ficken IFP status, it denied appoint-
ment of counsel, applying the test set forth in Poindexter v.
FBI, 737 F.2d 1173 (D.C. Cir. 1984), which directs district
courts to consider "(1) the ability of the plaintiff to afford an
attorney; (2) the merits of the plaintiff's case; (3) the efforts
of the plaintiff to secure counsel; and (4) the capacity of the
plaintiff to present the case adequately without aid of coun-
sel," id. at 1185. Acknowledging that Ficken "may well not

be able to afford an attorney," and lacked experience with
Title VII matters, the court concluded that it could not
"justify squandering its limited resources of attorneys willing
to take pro bono appointments."

Ficken moved for reconsideration, which a different district
court, also applying the Poindexter factors, denied. The
court explained that Ficken's abilities as an attorney weighed
heavily against appointing counsel, and that "[t]o date, [Fick-
en] has ably presented his case to the Court." The district
court also noted that "[a]t this early stage of the litigation,
the pleadings do not permit the Court to find that the merits
of [Ficken's] case are so compelling that appointment of
counsel is necessary to ensure the vindication of important
federal civil rights."

Without waiting for any further proceedings in the district
court, Ficken appealed. We appointed amicus curiae on his
behalf.

II

This court has jurisdiction of appeals only from "final
decisions of the district courts," 28 U.S.C. s 1291 (1994)--
decisions that "end[ ] the litigation on the merits and leave[ ]
nothing for the court to do but execute the judgment."
Catlin v. United States, 324 U.S. 229, 233 (1945). This
jurisdictional limitation, however, is not absolute. In Cohen
v. Beneficial Industrial Loan Corp., the Supreme Court
recognized a "small class" of decisions that "finally determine
claims of right separable from, and collateral to, rights assert-
ed 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."
Cohen, 337 U.S. at 546. In order to qualify for immediate
appeal under Cohen's collateral order doctrine, a district
court order must meet three requirements: "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 v. Livesay, 437 U.S. 463, 468 (1978); see,

e.g., United States v. Durenberger, 48 F.3d 1239, 1241-42
(D.C. Cir. 1995) (citing standard).

This court has never decided whether orders denying ap-
pointment of counsel under section 2000e-5(f)(1) qualify as
appealable collateral orders. The question has divided our
sister circuits. The Third, Fifth, Eighth, and Ninth Circuits
allow interlocutory appeal of such orders. See Spanos v.
Penn Cent. Transp. Co., 470 F.2d 806, 807 n.3 (3d Cir. 1972);
Caston v. Sears, Roebuck & Co., 556 F.2d 1305, 1308 (5th Cir.
1977); Slaughter v. City of Maplewood, 731 F.2d 587, 588-89
(8th Cir. 1984); Bradshaw v. Zoological Soc'y, 662 F.2d 1301,
1305-18 (9th Cir. 1981). The Sixth, Seventh, and Eleventh
Circuits read the Cohen/Coopers & Lybrand factors to reach
the opposite conclusion. See Henry v. City of Detroit Man-
power Dept., 763 F.2d 757, 761-64 (6th Cir. 1985) (en banc);
Randle v. Victor Welding Supply Co., 664 F.2d 1064, 1065-67
(7th Cir. 1981) (per curiam); Hodges v. Department of Cor-
rections, 895 F.2d 1360, 1361-62 (11th Cir. 1990) (per curiam).
Circuits also disagree about the closely related question of
the immediate appealability of orders denying appointment of
counsel under the general civil appointment statute, 28
U.S.C.A. s 1915(e)(1) (West Supp. 1998) ("The court may
request an attorney to represent any person unable to afford
counsel."), although a heavy majority find no appellate juris-
diction. See Marler v. Adonis Health Prods., 997 F.2d 1141,
1142 (5th Cir. 1993) (citing cases).

Reviewing this extensive debate, we join those circuits that
hold that orders denying appointment of counsel under sec-
tion 2000e-5(f)(1) fall outside Cohen's collateral order doc-
trine. Most important, because the Poindexter factors as
applied to a particular case often change as litigation prog-
resses, denials of motions for appointment of counsel rarely,
as a practical matter, "conclusively determine the disputed
question." Coopers & Lybrand, 437 U.S. at 468. Consider,
for example, a plaintiff's "capacity ... to present the case
adequately without aid of counsel." Poindexter, 737 F.2d at
1185. Plaintiffs who file perfectly adequate complaints and
respond well to motions to dismiss might be entirely unable
to handle discovery or respond to motions for summary

judgment. Even pro se plaintiffs with sufficient skills to
survive summary judgment are unlikely to be able to try a
case.

The other Poindexter factors can likewise change during
litigation. With respect to the merits of the plaintiff's case
(Poindexter's second factor), or at least the district court's
perception of the merits, complaints that appear weak could
strengthen as discovery progresses or plaintiffs respond to
dispositive motions. Plaintiffs who have adequate financial
resources (Poindexter's first factor) to hire counsel for rela-
tively simple cases might be unable to hire more experienced
counsel should a case blossom in complexity later in the
litigation. Plaintiffs making no efforts to secure counsel
(Poindexter's third factor) before filing the complaint might
begin contacting lawyers or referral organizations in response
to dispositive motions or as trial nears.

Because of the evolutionary nature of the Poindexter fac-
tors, district judges often re-evaluate the need for appointed
counsel at various stages of the proceedings. Although a
court may well appoint counsel at the outset of a case, it
might also decide to postpone the decision--for example, until
after resolution of dispositive motions--in order to give itself
both more time and information to evaluate the plaintiff's
capabilities and the merits of the case. Here, for example,
the district court emphasized that its decision rested on its
assessment "at this point in the litigation," evaluating the
merits only "[a]t this early stage" and Ficken's capabilities
"[t]o date." District judges may also believe that given some
additional time, pro se plaintiffs might obtain counsel on their
own. As the Eleventh Circuit observed in holding orders
denying appointment of counsel unreviewable until the close
of litigation, such orders "usually indicate[ ] 'nothing more
than that the district court is not completely confident of the
propriety of [court appointed counsel] at that time.' " Holt v.
Ford, 862 F.2d 850, 852 (11th Cir. 1989) (en banc) (quoting
Gulfstream Aerospace Corp. v. Mayacamas Corp., 485 U.S.
271, 278 (1988)); see also Miller v. Simmons, 814 F.2d 962,
965 (4th Cir. 1987) ("[S]uch [a] preliminary order does not
foreclose future consideration by the trial court of the appro-

priateness of appointment of counsel as facts and circum-
stances dictate.").

Other factors contribute to the tentative nature of orders
denying appointment of counsel. Because district judges are
reluctant to "squander[ ] [their] limited resources of attorneys
willing to take pro bono appointments," they often postpone
the appointment decision until after dispositive motions as a
means of weeding out frivolous or unmeritorious cases. The
timing of the appointment may also reflect the district court's
assessment of the adequacy of the record for purposes of its
own decisionmaking. A district court that initially denies a
motion to appoint counsel because it feels comfortable resolv-
ing a motion to dismiss on the basis of a record produced by a
pro se plaintiff may later appoint counsel to ensure the
development of a record adequate for summary judgment or
trial.

Although our conclusion that orders denying appointment
of counsel under section 2000e-5(f)(1) fail Cohen's first test
requires dismissal of this appeal, see Digital Equip. Corp. v.
Desktop Direct, Inc., 511 U.S. 863, 868-69 (1994) (finding
order not immediately appealable because not all Cohen
factors met); Firestone Tire & Rubber Co. v. Risjord, 449
U.S. 368, 376 (1981) (same); see also D & H Marketers, Inc.
v. Freedom Oil & Gas, Inc., 744 F.2d 1443, 1446 (10th Cir.
1984) (noting that orders must meet all prongs of the Cohen
test in order to be immediately appealable), we also doubt
whether such orders meet Cohen's third requirement--that
the order in question be "effectively" unreviewable on appeal
at the conclusion of litigation, Coopers & Lybrand, 437 U.S. at
468. To be sure, "[a] pro se litigant denied appointed counsel
is subject to numerous errors, many of which cannot be cured
post hoc, and seems far more likely to abandon the case
entirely or accept a deficient settlement." Br. of Amicus at
15. The Supreme Court, however, has recognized that such
problems flow inevitably from the general rule prohibiting
interlocutory appeals. As the Court said in rejecting immedi-
ate appeal of an order vacating a dismissal based on a
settlement agreement:

A fully litigated case can no more be untried than the
law's proverbial bell can be unrung, and almost every
pretrial or trial order might be called "effectively unre-
viewable" in the sense that relief from error can never
extend to rewriting history. Thus, erroneous evidentiary
rulings, grants or denials of attorney disqualification and
restrictions on the rights of intervening parties may
burden litigants in ways that are only imperfectly repara-
ble by appellate reversal of a final district court judg-
ment, and other errors, real enough, will not seem seri-
ous enough to warrant reversal at all, when reviewed
after a long trial on the merits. In still other cases, an
erroneous district court decision will, as a practical mat-
ter, sound the "death knell" for many plaintiffs' claims
that might have gone forward if prompt error correction
had been an option. But if immediate appellate review
were available every such time, Congress's final decision
rule would end up a pretty puny one....

Digital Equip. Corp., 511 U.S. at 872 (citations omitted).
Orders denying appointment of counsel present Title VII
plaintiffs with similar problems: they may "burden [them] in
ways that are only imperfectly reparable by appellate rever-
sal of a final district court judgment," id.; and such orders
may "not seem serious enough to warrant reversal at all,
when reviewed after a long trial on the merits," id. But as
our decision in Poindexter demonstrates, denial of interlocu-
tory appeal does not " 'render impossible any review whatso-
ever.' " Firestone, 449 U.S. at 376 (quoting United States v.
Ryan, 402 U.S. 530, 533 (1971)); see also Wilborn v. Escal-
deron, 789 F.2d 1328, 1330-31 (9th Cir. 1986) (on appeal after
grant of summary judgment, court found no abuse of discre-
tion in denial of appointment of counsel earlier in litigation);
cf. Flanagan v. United States, 465 U.S. 259, 268 (1984)
(noting that "post-conviction review [of a disqualification or-
der] is concededly effective to the extent that petitioners'
asserted right is like the Sixth Amendment rights violated
when a trial court denies appointment altogether").

It is also true that orders denying appointment of counsel
may, as Digital Equipment put it, "sound the 'death knell' for

many plaintiffs' claims that might have gone forward if
prompt error correction had been an option." Digital Equip.
Corp., 511 U.S. at 872. But whether some pro se plaintiffs--
indeed, even this plaintiff--might choose not to pursue their
cases without appointed counsel is not the controlling ques-
tion under Cohen. As the Supreme Court made clear in
Digital Equipment, whether an order qualifies as a collateral
order under Cohen "is to be determined for the entire catego-
ry to which a claim belongs, without regard to the chance that
the litigation at hand might be speeded, or a 'particular
injustic[e]' averted by a prompt appellate court decision." Id.
at 867 (quoting Van Cauwenberghe v. Biard, 486 U.S. 517,
529 (1988)) (citation omitted). The Court's decision in Rob-
erts v. United States District Court, 339 U.S. 844 (1950) (per
curiam), on which amicus relies, illustrates just this point. In
Roberts, the Court held that orders denying in forma pauper-
is status are immediately appealable. Id. at 845. Unlike
orders denying IFP status, which effectively close the court-
house door to indigents, orders denying appointment of coun-
sel do not prevent pro se plaintiffs from proceeding. While
some pro se Title VII plaintiffs denied appointed counsel may
abandon their claims for lack of assistance, orders denying
appointment of counsel present no absolute bar to proceeding.
Many pro se plaintiffs respond to dispositive motions, and
some even successfully litigate at trial and on appeal. See,
e.g., Barbour v. Merrill, 48 F.3d 1270 (D.C. Cir. 1995) (pro se
plaintiff prevailing).

In reality, moreover, postponing review of denials of coun-
sel risks fewer and less serious burdens than Ficken and
amicus fear. Most Title VII cases terminate at the disposi-
tive motion stage. See Administrative Office of the United
States Courts, Judicial Business of the United States Courts
1997, at 153 (1998) (providing data indicating that a minority
of Title VII cases proceed to trial). At that point, the
problems inherent in appellate review of denials of appoint-
ment of counsel are considerably less formidable. When
reviewing orders dismissing complaints or granting summary
judgment, appellate courts will have less difficulty focusing on

the district court's application of the Poindexter factors and
isolating any prejudice resulting from the denial of counsel.
They will also have less difficulty fashioning a remedy. In-
stead of having to retry a case, the appeals court simply sets
aside the order granting the dispositive motion and remands
with directions to appoint counsel.

III

While we understand the concerns that led four circuits to
hold that motions denying appointment of counsel are imme-
diately appealable, particularly the unique nature of section
2000e-5(f)(1) and the challenges facing pro se plaintiffs seek-
ing to vindicate important federal rights under Title VII, we
read Cohen to require appellate courts to postpone review
until final judgment. Not only would a contrary ruling--
allowing interlocutory appeals of orders denying appointment
of counsel, and therefore also repeated appeals as district
judges deny successive motions--delay expeditious resolution
of Title VII cases, but given the fact-intensive and interrelat-
ed nature of the Poindexter factors, we think leaving appoint-
ment of counsel to the continued and uninterrupted evalua-
tion of district judges actually promotes the goals of section
2000e-5(f)(1). It is the district courts that occupy the best
position to evaluate and monitor plaintiffs' skills and the
strength and complexity of plaintiffs' claims, as well as to
determine whether and when to appoint counsel. Indeed,
district courts have their own strong incentives for ensuring
adequate representation for pro se plaintiffs. Except in those
few cases where pro se plaintiffs are unusually skilled, we
cannot imagine why any district court would want to try a
complex Title VII case without competent counsel.

Equally important, we expect district courts sitting in this
circuit have little difficulty finding competent counsel to ap-
point in Title VII cases raising promising claims. Many

organizations, firms, and lawyers in the District of Columbia
provide pro bono counsel. We have every confidence that
they will continue to respond to requests for help from our
colleagues on the district court.

Because we lack jurisdiction to review the district court's
denial of Ficken's motion for appointment of counsel, we
dismiss this appeal.

So ordered.