Fifth Circuit: No Appeals from Denials of Appointed Counsel
In Williams v. Catoe, the en banc Fifth Circuit held that orders denying appointed counsel in § 1983 suits are not immediately appealable via the collateral-order doctrine. The court concluded that these orders were effectively reviewable in an appeal from a final judgment. In doing so, the Fifth Circuit overruled its decision in Robbins v. Maggio and joined nearly every other circuit to address this matter. It appears that only the Eighth Circuit remains in treating orders denying appointed counsel as immediately appealable.
Williams—a Texas inmate proceeding pro se—brought Eighth Amendment deliberate-indifference claims against several state employees. The district court denied Williams’s request for appointed counsel. And under the Fifth Circuit’s 1985 decision in Robbins v. Maggio, denials of appointed counsel were immediately appealable under the collateral-order doctrine. So Williams appealed the district court’s decision. But the state of Texas moved for initial hearing en banc, and Louisiana and Mississippi filed an amicus brief in support of the motion. They asked the Fifth Circuit to re-examine Robbins. The court agreed and, in a unique procedural posture, heard the case initially en banc.
In a short opinion, the Fifth Circuit overruled Robbins and held that denials of appointed counsel in § 1983 cases were not immediately appealable under the collateral-order doctrine. That doctrine—a judicially created exception to the regular final-judgment rule—deems certain kinds of district court decisions final and appealable if three conditions are met: the order must (1) conclusively resolve the appealed issue, (2) present an important issue that is completely separate from the merits, and (3) be effectively unreviewable in an appeal from a final judgment.
The court addressed only the third requirement: that the order be effectively unreviewable on appeal from a final judgment. Robbins had reasoned that pro se litigants would abandon their claims or settle if they could not obtain appointed counsel. That is, those litigants were sufficiently unlikely to prosecute their claims or appeal that denial of appointed counsel was effectively unreviewable.
Williams quoted extensively from Judge Garwood’s dissent in Robbins, which noted that many pro se litigants pursue their claims through an appeal. Judge Garwood had also predicted a significant increase in the number of appeals in pro se civil suits. The Fifth Circuit thus concluded that although burdens of delaying these appeals might not be perfectly reparable on appeal after a final judgment, that was not enough to render these decisions effectively unreviewable under the collateral-order doctrine.
The Fifth Circuit noted that nine other circuits have reached the same conclusion, with the Eighth Circuit now being the only apparent outlier. And in a footnote, the court limited its holding to § 1983 suits—it declined to extend its holding to Bivens suits due to the “law of unintended consequences.”
Williams v. Catoe, 2020 WL 64476 (5th Cir. Jan 7, 2020), available at the Fifth Circuit and Westlaw.
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