Nancy S. Bradshaw, Individually and on Behalf of Others Similarly Situated v. Zoological Society of San Diego

trial were less than court’s comments have reviewed evenhanded. therefore judge’s

the evidence and trial comments to determine whether abuse of discretion require appellate

sufficient intervention has occurred. that,

Of course it is axiomatic in commenting on the evidence and in his structions, judge always a trial wish to

guard against unfairly tipping the scales against

favor of or a contested or a issue liability party. jury findings As to the claims, on the contract tort as to and and unpaid disability, the amount of we believe strong the evidence to have been so that it unlikely is most remarks in this inducing record have constituted an plaintiff. factor in the verdicts More over, argument neither at nor in briefs

appellant truly challenge mounted a serious liability. to the issues of And since we have already rulings held that error in the on the damages compensatory

issues contract punitive retrial, damages require justice conclude that the ends do not call for more than already has been said. forth,

For the reasons hereinabove set judgment of the district court is AF- PART; IN

FIRMED AND REVERSED REMANDED IN PART.

Nancy BRADSHAW, Individually S. similarly situated,

on behalf of others Plaintiff-Appellant, ZOOLOGICAL DIE SOCIETY OF SAN

GO, al., Defendant-Appellee. et

No. 79-3051. Appeals, United States Court Ninth Circuit. Argued Dec. Submitted

Decided Dec. E.E.O.C., O’Connor, Die-

Colleen M. San Cal., argued, plaintiff-appellant; go, Bradshaw, per., Nancy pro on brief. S. Bell, Jr., Gary, Cary, W. Ames & Robert Cal., Diego, argued, for defend- Frye, San Bauhofer, N. Die- ant-appellee; Donald San Cal., go, on brief. E.E.O.C., Prager,

Lutz Alexander Wash- D.C., ington, amicus curiae. SKOPIL, WALLACE, and REIN-

Before HARDT, Judges. Circuit REINHARDT, granted proceed Judge: Circuit Bradshaw leave to for- pauperis ap- ma and denied her motion for Bradshaw, Nancy Appellant acting in pointment of counsel. persona, propria filed this sex discrimina- early alleging she tion action Bradshaw filed a motion for reconsidera- unlawfully employment denied request tion her Zoological Society again in 1969 and in appointed supported by supple- a charge 1971.1 Shе had earlier a filed with affidavit, sought mental and also leave to Equal the Employment Opportunity Com- complaint plead amend her to ac- class (EEOC) mission and the EEOC had found 11,1978, September tion.5 On both of these to “reasonable cause” believe the Zoo- requested motions were denied. Bradshaw logical Society against discriminated Brad- certify the court district this order for shaw her the denying application in for interlocutory pursuant appeal to 28 U.S.C. position of at education director the Zoo.2 1292(b). section The district court declined 1975, April In of the grant- district court so, to do and a timely Bradshaw filed notice summary judgment Zoological ed So- 11, appeal September of from the order of ciety, finding Bradshaw’s claims under both pursuant to 28 U.S.C. section 1291. VII Title and section 1983 to be time- appealed. Nearly barred. Bradshaw three I. JURISDICTION later,

years panel of this court reversed We are at outset determinations, by confronted the three both and remanded the case relating jurisdiction issues to our this proceedings. for further over Bradshaw v. Zoo- logical appeal. Appellee Society Diego, of San contends that the F.2d 1066 order (9th 1978). Cir. denying complaint leave to amend the plead appealable a class action is not be- Proceedings in the district court resumed meaning cause not final within the of sec- filing with the of an answer to the com- challenges appeal tion 1291 and the the of plaint thereafter, April Shortly of 1978. denying appointment of on counsel Bradshaw filed a motion for of ground unap- the that it was taken from an pursuant counsel to 42 U.S.C. section pealable of reconsideration 2000e-5(f)(l)(B),3 proceed and for leave orig- the district court’s earlier of denial her pauperis.4 Supporting forma affidavits issue, inal motion. We also detailing were filed her address third unsuccessful efforts attorney an impecunious denying appointment obtain and her whether an order financial situation. The district court under section 1291. relied, brought Although successfully, 1. Bradshaw suit Title .under VII of the on Bradshaw 1964, Rights 1915, Civil involving language Act of §§ U.S.C. 2000e- § cases additional (1976), 2000e-17 and 42 2000e-5(f)(l) may require showing § U.S.C. 1983. Be- a lesser § gender, sides she also claims on discrimination Support in Title VII Flowers v. Turbine cases. status, the basis of marital and in Div., retaliation (5th 1975). Cir. F.2d past complaints her of discrimination. regard 5. There is some confusion 2. The reasonable cause determination propriety whether the issue of the vari- by attempt led to unsuccessful at EEOC allegations prior ous cláss was raised on the “right conciliation and the issuance of to sue” decision, appeal. previous In its memorandum letter to Miss Bradshaw. brought the district court dismissed claims minority groups, provides, part: behalf ethnic and racial This section allegations ordered stricken action was Upon application by complainant and in brought on behalf of “all adult females all may such circumstances as the court deem opinion just, unmarried females.” The adult appoint attorney the court previous panel complainant court makes no mention such authorize although rulings, of these Bradshaw claims that commencement the action without costs, panel payment fees, presented issue security. to that light 2000e-5(f)(l)(B) (1976). EEOC its con- § U.S.C. amicus brief. of our jurisdiction presently clusion that we lack over requested 4. Bradshaw’s the latter motion relief amend, express the order leave to pursuant 1915, although to 28 U.S.C. § opinion aspect no on this of the case. 2000e-5(f)(l) provision. § contains a similar appellate issue raised consideration be deferred Although this last is not obligated adjudicаted. appellee, we nevertheless the whole case is until jur question appellate determine of our 1225. This States, isdiction. Rowe United standard, general recently reaffirmed denied, 1980), cert. Court,6 Supreme guides inquiry. our 68 L.Ed.2d 349 recognize that the Cohen doctrine is exception to regarded as an the final rule, proceed judgment and thus mindful jurisdictional these issues Each of finality policies underlying also of requires to the final reference requirement. rule embodied in 28 section U.S.C. “juris which vests in the courts of of Leave to Amend A. Denial

diction all final decisions of general the district courts . . . . In its district court deny order of the application, statutory language ing complaint leave her Bradshaw to amend been appellate jurisdiction read to restrict orders, class, appealable. is not as a Such to situations where the order of the district contemplate proceedings in further the dis litigation court “ends the on the merits and court, previously trict and this court has nothing leaves for the court but exe to do that review is after the held available final cute the judgment.” Catlin v. United judgment, they merge. into which Sackett States, 229, 233, 631, 633, 324 65 U.S. S.Ct. Kvan, Beaman, 884, Inc. v. 399 & F.2d 889 (1945). However, 89 Supreme L.Ed. 911 1968). opportunity n.6 The recognized Court has by some orders amend, denied, may if erroneously be effec their require nature review at an earlier tively protected judgment after final on the stage if they are to be effectively reviewed merits. at all. such cases Court has said that availability In addition to the later of given “practical section 1291 be must review, effective such orders also fail construction,” rather than a technical Co qualify disposition under Cohen as “a final hen v. Corp., Beneficial Industrial Loan 337 546, right.” of a claimed 337 U.S. at 69 541, 546, 1221, 1225, U.S. 93 L.Ed. Rather, by at 1225. the terms S.Ct. of (1949), 1528 rigid because “a on insistence 15(a), Fed.R.Civ.P. an order leаve finality technical would sometimes conflict tentative, or, is inherently to amend in the with the purposes Coopers of the statute.” Cohen, “subject words to reconsideration Lybrand 463, 471, & Livesay, v. 98 U.S. 547, to time.”7 time Id. S.Ct. at 2454, 2459, (1978). 5.Ct. 57 L.Ed.2d 312 This same characteristic was deemed The Cohen collateral order dqctrine significant regard orders allows from orders be that can said class certification under Fed.R.Civ.P. in23 to fall within Coopers Lybrand Livesay, U.S. finally (1978), small class which determine S.Ct. 57 L.Ed.2d where from,

claims right separable Supreme and collat- unap Court held such orders to, action, eral asserted in pealable part too under section because important “subject to be denied and they review too to revision in the District independent require of the cause itself to Id. at Court.” 2458.8 We Risjord, party; Firestone Tire & Rubber Co. v. consent of the and leave adverse shall 669, 673-74, freely given justice requires.... 101 be when so L.Ed.2d 23(c)(1) provides: 8. Rule practicable As soon as after the commence- provides: 7. Rule 15 action, brought ment of an action as a class (a) party may Amendments. A amend his court shall determine order whether pleading once as a matter of course at An is to be so maintained. order under this responsive pleading time conditional, before a is served may subdivision be party .... Otherwise amend his altered amended before the decision on the pleading leave of court or written merits. of her regard appointment conclusion with the denials motion for reach same reconsideration, here.9 motion for motion for leave to amend. Under the cir- Denying for B. Motion Reconsidera- Order case, cumstances of this we conclude that tion was, for the motion “reconsideration” concerning There is some confusion effect, a renewal of those motions from which ordеrs Bradshaw is now appeal appeal merits and thus the notice of ing. Zoological Society suggests timely filed.10 appealing from the or Bradshaw must denied, September der which Denying Appointment C. Order of Counsel view, Society’s motion reconsideration principal issue before us Society earlier Bradshaw’s motions. The denying appointment whether orders argues appeal may no taken from in Title VII suits are reconsideration, denial of a motion section 1291. We find ourselves in implies appeal that an from the denial of agreement pre with the circuits that have of counsel is time-barred be viously question. addressed this All have appeal cause the October 3 notice of is more appealable, finding held such orders them days July than 30 after the 13 denial of the squarely to fall within Cohen “collateral motion for of counsel. The exception order” appeal notice itself states that starting September point is from the rule.11 The for our but discussion appealing further states that Bradshaw is is the Court’s statement in Cohen : judge apparently 9. We note the fact that that this order is tenta- treated matter the the on merits, separately tive in nature means the that district court will as he denied the motions for complaint appointment amend, consider a new motion to amend the of and leave to counsel plead by ap- a class action if one made simply is denying op- than rather Bradshaw the pointed Thus, counsel. We are certain that the dis- portunity to be reheard. we consider carefully trict court will quest consider such re- appeal September to be from the 13 made ‍​‌​‌‌‌​‌​‌​‌‌​​​​​​‌‌​​‌​​​‌‌‌​‌​​​‌​​‌‌​‌‌‌​​​​‍an who will have had denying appointment the motions for of coun- opportunity independent appraisal to make an Therefore, sel for leave to amend. the propriety of the of a action class and the train- appeal timely October 3 notice of was filed. ing necessary showing the make detailed required by See, 23(a). g., Fed.R.Civ.P. e. expressly 11. Four circuits have held orders de Corp., 961, F.Supp. Johnson v. Hertz (S.D.Tex. 1970). 316 962 nying appointment of counsel in Title VII cases appealable under v. Cohen. Jones WFYR Ra dio, 1980); (7th 626 F.2d 576 Cir. Hudak v. July motion, interpreting 10. the 24 and the Missouri, University (8th of 586 F.2d 105 Cir. September motion, denying 13 order we denied, 1978) 985, (per curiam), cert. 440 U.S. may exercise some latitude because motion (1979); 99 S.Ct. 60 L.Ed.2d 247 Caston v. party acting persona. propria filed Sears, Co., (5th Roebuck & 556 F.2d 1305 Cir. Kemer, 519, 520, See Haines v. 404 U.S. 92 1977); Co., Spanos v. Penn Cent. Trans. 470 594, 595, (1972). Looking S.Ct. 30 L.Ed.2d 652 (3d 1972) (per curiam); Ray F.2d 806 Robinson, Cir. cf. v. whole, moving papers interpret at the aas (3d 1981). 475-77 Cir. motion, July 24 not as motion for rehear- In addition to four circuits which have motions, ing of the earlier but rather as a re- expressly denying appointment held orders of newal of on those motions the merits. Brad- appealable, counsel in Title VII cases shaw attached to her motion an affidavit de- Second Circuit has scribing held an attorney her efforts to retain since of counsel under 28 U.S.C. the denial of her earlier motion. This affidavit 1915(d) appealable is § Pleasure, under Miller v. support Cohen. as was intended of her further need curiam), (2d 1961) (per F.2d eligibility 296 283 Cir. appointed counsel. If she denied, prevailed attempt rt. 82 S.Ct. had her to obtain an attor- ce motion, reasoning ney 8 L.Ed.2d 830 The Miller on this is new she would not have equally applicable Only pleading been lack to Title VII orders. barred for counsel from Therefore, denying appoint coupled Tenth Circuit has class action. held orders she her mo- 1915(d) ap tion ment of to amend with her counsel under motion for section not pealable argument of counsel. Her as final wаs not that her orders. Cotner v. United reheard, Mason, earlier motions should but States Probation 657 1390 that the Officer F.2d grant (10th 1981). light court should her new Cir. motions Further, Society implicitly respond- the new circumstances. The the Sixth Circuit argument respect ed to her on the merits. The district reached a similar result with to orders successfully prosecuting fall in small case appears to his to a This decision on resolution finally class determine claims final merits. which to, from, and collateral right separable Id. at action, impor- in the too asserted has, Caston, Supreme Court The since indepen- tant denied review and too to be require the Cohen doctrine to restated “ require the cause itself to dent of conclusively order . . ‘the . determine the appellate consideration be until deferred question, important disputed resolve an is adjudicated. the whole case is completely separate sue from the merits of 1225-26. U.S. at action, effectively and be unreviewable judgment.’ on from a Fire deciding question New of the cases Risjord, Tire stone & Co. v. Rubber U.S. appealability appoint of a refusal to 669, 674, 66 L.Ed.2d 571 sufficiently have the issue diffi- considered Coopers (1981) (quoting Lybrand v. Live discussion; prolonged cult to merit most 463, 468, 2454, 2458, say, 437 Fifth take their lead Circuit’s (1978)). L.Ed.2d Our examination of Sears, Co., opinion in Caston v. Roebuck & agree each these factors leads us to court, 1977).12 The F.2d 1305 decision, recent Ray the Third Circuit’s v. Cohen, relying gave close attention Robinson, (3d Cir.1981), 476-77 F.2d of the reaching nature order in its con- view that orders reaffirming the unanimous regarding appealability; deny clusion re- appointment of counsel motions for view, suggested, impede, the court section 1291. further, rather than the ultimate resolution Finality litigation: appoint attorney refusal first, simplest, perhaps re clearly important “too to be denied re- quirement from the relation be derives independent view and too of the cause appellate tween' trial and courts. Section require appellate itself to considera- preserve serves that relation one tion be deferred until whole case review, supervision. Thus the deci adjudicated.” Cohen Beneficial Indus- particular sion district court on the Corp., trial Loan 546 point [69 at issue should be final. This criteri 1221, 1226, S.Ct. . 93 L.Ed. . . in 1528] on is satisfied here that the district court (1949). Obviously, appoint the refusal to clearly subject said its last word on the attorney to collateral the merits of way in no indi the deny case. decision to the assist- Indeed, cating that its order was tentative. appointed attorney lay- ance of an to a the here is taken from denial the man unschooled in law in as the an area ruling.13 a motion reconsider the earlier complicated as the civil field is unequivocal effectively, The trial court has important and, truly too be a below, deferred until ly, erroneously as we discuss resolution on the can had. rejected merits for request Miss Bradshaw’s assista likely hope Such an individual has little nce.14 granted. of counsel in Title VII condition, Such a the court, said discussing suits, without the issue. Harris v. not detract from the of the Dis “[did] finality Walgreen’s Dist. Center, 588 Cir. trict Court’s . . . at Id. 808 n.3 disposition 1972). (citations omitted). No such condition was suggested below this in case.

12. Caston is also the common for the source reviewing Cohen, test in 14. In such the Court noted a applied orders on the that as dispute might merits. II, See to the amount of a bond part infra. not appeala- ble under § 1291 since the statute ex- bond 13. Cf. v. Penn Co., Cent. Trans. for Spanos reconsideration that pressly provides (3d 1972) curiam), (per F.2d 806 where the “from time time.” 337 U.S. at question Third Circuit found an order at in & appointed Similarly, Coopers Lyb- ruling Cohen the the rand Court found сlass “in- despite action fact governing the left district court the open possi since the herently tentative” rule might renewed bility later be such actions that orders in- request expressly provides in even those cases Separability where the order meets e., indepen- relative standard —i. “too criterion under The second Cohen dent of the cause to require itself requires that the the court examine relation appellate consideration be deferred.” Im- the order the between substance the mediately the itself. In the thereafter Court merits of action Cohen the noted the “separable as Court characterized “practical” need than rather “techni- from, and collateral to” the merits. The cal” construction of the rule. separability require Court stated that Coopers Lybrand & Court further ment would satisfied where explained requirement, separability independent was “too of the cause itself to holding refusing certify orders a class require appellate consideration be de non-appealable part under section adjudicated.” ferred until whole case is appellate required because courts would be at at (emphasis U.S. “ to become ‘enmeshed in the factual and added). The Court said the collateral order legal plaintiff’s issues comprising the cause exception apply would not to decisions that of action.’ 437 U.S. at “steps” are towards regarding 2458. Determinations class certi- might simply merits. One well conclude above, from the did the Fifth Circuit fication involve issues typicality, such as “Obviously, Caston: to appoint refusal adequacy, question common re- attorney is collateral to the merits quirements under Fed.R.Civ.P. 23. Exhaus- However, case.” F.2d at 1308. in view required tive factual records frequently are position our dissenting taken col purposes of such decisions. See C. league issue, concerning analyze this Miller, Wright, A. Cooper, & E. Federal question in more detail than the Fifth Cir (1976), Practice and Procedure n.45 cit- thought cuit necessary. Coopers Lybrand, ed in purpose separability The basic of the re- n.12, 98 S.Ct. at 2458 n.12. The same is quirement is permit important review of respect legal true with in- issues collateral, truly determinations that are i. Frequently discovery volved. proceed- e., interlocutory where re- review ings hearings and the Ac- extensive. sult appel- unwarranted interference cordingly, the court allow concluded late properly courts re- determinations interlocutory appeals in those cases would served to the completion district court until appellate “enmesh” courts factual and trial, affecting determinations legal intimately matters related to the sub- merits of the cause action itself. The stance of “the cause itself” and would re- part distinction drawn of Cohen is appellate sult in court determinations that between orders part that are a of determin- necessarily affect the later determi- ing the merits of the claim and orders that nation those issues the trial court. do not part constitute a of determining “the cause itself.” As the Court said in summar- The argument, that extent izing opinion, ap- its hold this order “[w]e exists, any over whether orders pealable disposition because it is final aof appointment “separable of counsel are right ingredient claimed which is not an from, merits, put and collateral to” or the cause of action and not require does differently independent of “too the cause 546-47, consideration with it.” 337 at U.S. require appellate itself to that consideration 69 S.Ct. at 1226. We note further Cohen’s deferred,” applicatiоn arises out of the recognition that simplistic, in some cases a one may possible absolutist division three basic criteria which must not be and permitted therefore will rights plaintiffs be met when civil seek volving denying appointment “inherently class status “altered amend- of counsel Firestone, 380, ed before decision the merits.” tentative.” See also 449 U.S. at 11, J., at (Rehnquist, concurring). 469 98 n. 2458 n. 11. There no 101 S.Ct. at 676-77 provision any making statute or orders rule (1) required finding this case: of indi- The criterion which counsel. appointed (2) a colleague difficulty gency, finding underlying and that the dissenting causes our claim has some It is the second the Title VII claim is merit.18 this case is: whether Caston, finding part which significance 556 F.2d at 1309.15 is of to this meritorious. requirement only This of our discussion.19 means plaintiff must show that the claim has some The orders in this case and in Roberts merit, by an showing usually satisfied separability meet the test set forth in Co- “probable determination of cause.” EEOC hen. Neither the of counsel only Thus the order involves incidental decision, pauperis nor the in forma determi- usually indirect reference to the substance nation, “step constitutes a toward dis- however, not, plaintiff’s claim. It is Cohen, position of the merits of the case.” in a manner that dependent on the merits 546, (emphasis at 1225 U.S. 1291, unappealable renders it under section added). requires Neither the court to be- not, circumstances, any re- and does underlying come “enmeshed in the factual quire the court become “enmeshed” legal Coopers Lybrand, issues.” in a issues involved determination of 469, simply U.S. at 98 S.Ct. at 2458. Each the merits. requires recognize the court supported by underlying Our conclusion is Roberts has some merit. Both in- claim Court, preliminary procedural United District volve States U.S. determina- (1950) (per 70 S.Ct. 94 L.Ed. 1326 cu tions about how the trial on the merits will riam), Supreme proceed, g., where the Court stated that e. with or withоut proceed payment an order leave to in forma or without of fees. Both involve pauperis from, to, rights “separate under section 1291 and collateral Id. at Cohen. 70 S.Ct. at 955.17 asserted in the action.” The refer- This circuit has also so held. required Smart v. ence to the merits in both cases is Heinze, (9th Cir.), 347 F.2d cert. Finally, minimal and incidental. in both denied, 15 cases the decision on from denial of (1965). pauperis L.Ed.2d 153 Forma status way motions not in affect requires findings very two similar to those district court’s determinations on the merits provides Heinze, (9th 15. Title VII for of coun- In Smart v. 1965), sel “in such circumstances as the court Cir. we said: just____” 2000e-5(f)(l)(B) deem § U.S.C. duty It is the of the District to examine Court appoint- The three criteria utilized in any application proceed leave to forma ment of counsel have been cases established pauperis proposed to determine whether part opinion case law. See II of this for a proceeding appears has merit and if it discussion of those criteria. merit, proceeding is without the court deny seeking bound to a motion leave to accompanying See text 46-47 infra. Any and collateral. contention that say petition cases is to that must be non- distinguishable Roberts is must be based on an may frivolous. Whatever difference exist be- entirely argument; e., different i. that denial of applica- tween this standard and the standard pauperis an in forma would motion terminate appointment ble in of counsel cases is of no litigation preclude and re- thus effective significance purposes part for of this of our distinction, may view. That whatever merit it decision. have, is not relevant to the issue discussed in opinion, any this section of our it in nor does case, finding required 19. The third in our inabil- way place undermine the reliance we on Rob- counsel, ity to secure not here. is also relevant erts. Cohen, “of the cause itself.” 337 U.S. at of the district court’s function when civil 546, 69 S.Ct. at 1226. rights plaintiffs appointed counsel, seek ‍​‌​‌‌‌​‌​‌​‌‌​​​​​​‌‌​​‌​​​‌‌‌​‌​​​‌​​‌‌​‌‌‌​​​​‍to conclude that a district court

In the case of motions for of counsel is not within the exception Cohen counsel, is, nature of the court’s role if from, “separate for matters anything, collateral more limited than in the case of to, proceed pau- rights for leave motions to forma asserted in It the action.” case, In the peris. former the court need require a disregard misconcep- similar normally only a look determination an tion to conclude that review of such an agency, administrative the EEOC. For requires of court to be- practical purposes, agency’s that determina- underlying come “enmeshed” in the factual ordinarily tion is If the agency conclusive. and legal issues. Where the EEOC has cause,” has found it “reasonable did in cause, probable found no there is risk of case, Miss Bradshaw’s the claim should nor- consideration the merits the court of mally purposes be deemed meritorious for appeals; probable where cause has not been of appointment and the court found, any consideration of the merits will inquiry respect need make no further with involving be as limited as in cases in forma subject.20 making to that its determina- pauperis determinations. tion whether the claim merit in in for- has appeal- Other orders that have been held cases, ma pauperis the court does not have exception able prior require under Cohen also benefit a administrative deter- mination of this always issue. It must some reference to the merits. In Stack v. independent make an evaluation the Boyle, L.Ed. meritoriousness of the claim. Thus the (1951), holding the Court relied on Cohen in scrutiny of the merits which the court is an order a motion for reduction of required engage ordinarily is greater bail Id. section 1291. in in pauperis appoint- forma cases than in require 72 S.Ct. at 4. Such orders reference ment of counsel cases. to the “nature and circumstances .,” charged of the . require disregard

It would a offense . but also to both misconception weight Roberts and a against nature “the the evidence strong presumption 20. The a created rea- vorable and unfavorable determinations EEOC rebutted, may right sonable cause determination when the to counsel is at There is issue. suggests, involved, as the EEOC if “the part administrative no unfairness because the finding face, internally is opposing on its is party legitimate unsustainable no interest inconsistent, legal or is flawed in its reason- ensuring plaintiff, impoverished that ing.” However, an EEOC be, determination though she is denied counsel. supports plaintiffs no reasonable cause right plaintiffs right at issue is the to a fair approached claim should be somewhat differ- opportunity rights. to vindicate fundamental ently, plaintiff for the reason that will be injury plaintiffs Defendants suffer no when challenging without the aid of counsel given opportunity. An EEOC determina- agency’s finding. suggest- As the Fifth Circuit ordinarily provides tion of reasonable cause ed in Caston: justification allowing rights sufficient a civil may, should, litigant perhaps judicial system. The district court even fair crack at our Al- inquire plaintiff validity though compelled toas of the no the defendant to deal why attorney reasonable cause determination instead of an untutored and plaintiff layman, poor rights considers the determination to be in the defendant’s are not Surely, jeopardized result; fact, many error. the determination of the ad- as a defend- agency prefer rational, orderly, ministrative created to enforce the ants the more and rea- process ignored. negotiation litigation civil laws is not to be In this sonable regard, finding appointed. determina- which ensues when counsel is EEOC Moreover, supported by tion is substantial evidence in where an unfavorable deter- EEOC investigative plaintiffs clearly file and that ob- erroneous that does not mination so it jections patently thereto are frivolous would serve as bar to the of counsel weigh heavily against appoint- adopt, in the scales under the Fifth Circuit which we test ing attorney. solely appoint refusal because unfairly deny plain- 556 F.2d at determination would dissenting colleague suggests rights Congress Our tiffs fundamental intended differing provide give weight somehow unfair fa- them. 3146(b).21 review, portant Yet Jus- to be denied wholly accused.” 18 U.S.C. § Jackson, Cohen, from, tice the author of was able to, “separable and collateral rights assert, finding separability that asserted in the action.” satisfied, requirement the issues 3. Effective Review presented by entirely such an order “are in assessing ap The last criterion independent of the issues to be tried . . . . pealability under Cohen is whether J., (Jackson, at S.Ct. at 7 rights adequately protected asserted can be concurring). appeal judgment. on We are regarding separability Our conclusion also unwilling engage in two untenable as strong finds support in Rincon Band sumptions required we would be to make in Mission Indians v. Escondido Mutual Water to find that “effective review” is Co., 1972), 459 F.2d 1082 which judgment available after final on the mer court held under section rights plaintiffs its. first is that civil 1291 an a demand capable prosecuting their own cases plaintiffs provide Government trial; through the second is that should them with counsel. The court based its they so, doing they somehow succeed in conclusion squarely on Cohen. Id. at 1083- have the capability determination and plaintiff’s The basis of the demand was perfect appeals properly and conduct provided U.S.C. section which fully they assumptions after lose. Both representation by the United of res- States congressional judgment overlook the to the ervation Holding Indians. the statute contrary that led to the enactment of sec was directory only, the court rested its af- 2000e-5(f)(l)(B). tion firmance on the fact that the Government conflicting positions be forced to take assumption, agree As to the first before the court and the Indian Claims Caston, the Fifth Circuit’s statement Commission. 459 F.2d at 1085. A determi- “[sjuch F.2d at an individual like- nation of the Rincon conflict of interest ly hope successfully prosecuting has little question involved an examination of the his case to a final resolution on the merits.” factual legal basis and context of the two As appeal, any, to the if there is even less claims. Yet the court there concluded that hope. We consider it evident that the ef- the order “did not involve the merits ...” appellate fectiveness of review will be seri- within the meaning of Cohen. Id. at 1083. ously impaired by very nature of the reasons,

For order. A that, litigant, the above civil we conclude untrained law, in reviewing orders well decide denying appointment incapa- that he is appeal handling drop claim, courts of ble of the trial do not make deter- his minations that compelled affect the merits commence trial but be of the to aban- cause itself and do not don prior judgment,22 become “enmeshed his efforts to final legal factual and comprising technicality issues fail on a any attempt plaintiff’s cause of action.” To the con- should an adverse final trary, they matter, simple reached, decide a fail, too im- the merits ever be for lack Boyle, 21. See separately also Stack v. exception 342 U.S. at dealt with both the Cohen J., (Jackson, concurring) (discussing at 5 which is involved in the case before us and the language similar entirely former Fed.R.Crim.P. different “death-knell” doctrine which 46(c)). summarily disposed is not. The Court issue, finding, paragraph, Cohen in a brief self-recog- Abandonment of a claim out of respondents met none of the three Cohen tests. inability litigate complex nized civil case 468-69, 437 U.S. at 2457-58. The statutory provision when it, Court then turned to the second issue before comparable counsel exists is not to abandon- unfeasibility found that economic was insuffi- certify ment of a claim because the failure to separate cient reason to establish a new and pursuit class renders of one’s individual claim exception general finality reject- rule and “economically imprudent.” Coopers Lyb- & proposed doctrine, ed the “death-knell” which Livesay, rand v. 437 U.S. at solely was based on economic considerations. Coopers Lybrand the Court

13H insufficiency recovered, the of the requisite amount knowledge, to make the legal already monetary recovery, obtain a showing to obtain reversal.23 and should she appeal though not even example before us an of Miss Brad- she well she have entitled, law, job inability present legal may relative the to the shaw’s to effectively thorough from the she Without arguments appeal seeks. under- motion, simple complex legal of a the in- particularly standing issues denial issues procedural ability appreciate to deal the technical volved and without to possible in the those mat- errors analyze involved determination of or committed court, effectively hardly That Miss ters. she would be unable the trial Bradshaw would appeal properly a far be in to prosecute complex position to more evaluate any judgment question appeal final merits is tak- after on the whether should be admirable, Tenacity, apparent.24 however en. knowledge of the is no substitute for a aspects two the reviewabili- There are to

law.25 The ad- ty question. concerns above are “ first, managed pre- primarily if Miss Bradshaw to that ‘crucial dressed Even Fire- establishing liability, the extent of claims be lost....’” vail to collateral [will] stone, no she would (quot- there is reason to believe that at 674 U.S. due, Eldridge, recovery Mathews ing the full amount of obtain n.U, n.ll, she would obtain result- nor that an order 47 L.Ed.2d 18 second, employment (1976)). she The lia- Court also ing in seeks. noted a stage complex of a VII is bility finality requirement Title action need to construe but the enough, issues involved in formulat- “so cause . .. potentially irrepara- as not to ing proper ability Id. remedy injuries strain the ble to be suffered.’’ Miss In case, many non-specialist practitioners, much less a trial Bradshaw’s without plaintiff legal training. that of a without clearly injury, would cause such Miss since any recovery, Miss Bradshaw obtain Should Bradshaw would be bound the inevitable may well pursue appeal prejudicial she not based on she errors would make at her showing right 23. We need not determine what would now to relief if we were her of her deprive job to obtain reversal of the class of required which, She seeks a she appeal. specific alleges, here if orders involved review took fol- denied vio- place she was for reasons which lowing alleged However, on the merits. late the law. discrimination agreeing without that it would be correct to do defendant occurred If initially so, we can through courts, least, that at go some anticipate were to Miss Bradshaw to compel might impose that requirement plaintiff meaningless trial counsel, without then reversе prejudicial, show that the error was particular- district and direct court to follow the statu- where an otherwise successful com- ly plaintiff mandate it would be tory appoint afforded was inade- plains remedy at that Miss Bradshaw would point Were such a rule it would quate. adopted, hearing to which enti- obtain she is finally underlying render effective review of the tled VII. under Title all likelihood another highly more even improbable. follow, would whichever side appeal prevailed Barring the second trial. another reversal 24. We note that Miss Bradshaw was fortunate assuming that both would accept parties enough to have the assistance Equal our if final, would, decision Miss Bradshaw as ami- Employment Commission Opportunity she on the merits, have at last vindi- prevailed cus curiae on both this and the previous right job cated her she seeks. We esti- to this court. We assume, however, cannot mate that her vindication occur, willing the EEOC or able contin- earliest, some 17 after the al- years assist ue to her in this manner provide leged act discriminatory occurred. initially general- rights such assistance to civil plaintiffs Whether such relief would be “effective” in the future. did, Even if it fact would ly highly That com- it would fail to questionable. not affect our here in- analysis issues VII, with the Title ply purpose expedi- volved. litigants, tious relief be afforded civil not. 25. We note that even the which Miss tenacity might Bradshaw has thus far demonstrated be sufficient her effective permit obtain acting in subsequently disregard who is of set manage trial should she a rule first trial. Responsi- to obtain a reversal and a new She forth in Code of the Professional could, example, by bility. or Firestone the in be bound In Court held that testimony, with her or the case an not lie impeached earlier latter would However, from consequences suffer adverse unin- under seсtion the Court peti- stipulations. and unwise We as- based its decision on the fact that the formed merely also that the district court would be tioner in Firestone at ‘the sume “hint[ed] prejudice might to new round that entirely possibility’ hesitant allow an of occur discovery, peti- although in a VII case the the The Court noted Title trial. that the easily discovery give “single of can determine not exam- conduct tioner did concrete prejudice. must ple” the outcome of the trial.26 We thus of such particular be concerned not with the mechanical issue S.Ct. at 674. order at complexities litigation posed only hypo- of Title VII in the in Firestone a minimal and abstract, prejudicial danger prejudice party but also with the con- thetical of litigant’s However, sequences rights appeal.28 of a civil lack seeking of is not to to capacity pursue imagine indeed, divine and an effective impossible difficult to it is — Moreover, litigation strategy. delay to re- ignore irreparable to that injury —the view of this order deprive Miss Brad- would result from a refusal an to review of her right expeditious shaw to rights litigant determina- a civil appoint- of her rights tion substantive Title ed counsel. Because the likelihood that VII, in statutory policy contradiction appellant position of the in Miss Bradshaw’s expressed by Congress.27 proceed to through unable trial and ob- high, tain effective review of the order is so similarity is a superficial There between prejudice proceeding and the inherent in to injury that occurs a civil when great, trial without counsel is so we do not plaintiff is erroneously compelled pro- to injury view the that would result inevitably through ceed a trial without counsel and to from a refusal review the order us before possible prejudice may may or not speculative hypothetical. when litigants occur other civil are com- pelled proceed in through a trial which another There is fundamental difference represented by the other side is attorney between Firestone and Miss Bradshaw’s Such hesitance understandable, assertion, would be Government’s in an Brief Amicus judicial and only the waste of points up vividly Firestone, filed in there petitioner finding resources standing challenge would be entailed lacked in order, since accompanying See unappealable. text opposing such a it is the client, case not notes 36-37 infra. It is a new round likely stands suffer party, attorney’s of would be to a discovery trial, fair necessary divided See loyalties. Comment, dis- supra, prejudicial wasteful or not. In event, any cussing (3d Levin, IBM v. 579 F.2d 271 might error which occurred in the first round 1978): well be irremediable. acknowledged court that IBM injured litigant not its as a capacity accompanying 27. See note 41 and text infra. the antitrust suit and indeed that possi- injury dis- was eliminated IBM’s bility alleged 28. Firestone involved an violation missal of the firm in Al- the labor matters. Rule 5-105 of the Code of Profes- Disciplinary though a Canon 5 violation of this sort may sional which relates to simulta- Responsibility, injury to client, cause IBM’s disqualifica- neous on un- representation parties adverse incongruous tion motion since the appears related matters. A rule violation of this does infraction this case would have tended generally prejudice result to the oppos- injure Levin, not IBM. plaintiff, ing side. Disqualification in such cases is prop- (footnotes omitted) at 450-51 U.Chi.L.Rev. serving erly viewed as a deterrent policy —it added). (emphasis reach The Court did not designed sanction, rather than a remedy this issue Firestone. U.S. at complaining prejudice. protect party n.14. S.Ct. at 676 Comment, Access to Work Product Disquali- fied Counsel, U.Chi.L.Rev. 450-51 (1979). This have basis for formed the cases, defeating pur- such thus Firestone the was faced the avowed case. In Court pose of Court’s adopt decision and the final problem of with the whether contrast, rule. the denial of disquali- rule governing denials of uniform rights litigants counsel to civil creates generally.29 motions That class fication injury irreparable same clear threat of violations types orders involves various rights litigants pre- all eases. Civil Disciplinary Rules have of the which sumptively incapable complex handling upon parties effects varying opposing litigation protecting themselves and of litiga- fairness underlying and the against prejudice themselves the serious prejudice tion. In some of those cases some at trials in occurs which their adversar- opposing party conceivably to might the by ies represented sophisticat- are the most occur;30 in others it that none is clear There is no ed law firms.32 need in Title occur,31 impossi- would or that it would be particular VII evaluate cases to facts ble to determine until after trial whether (facts subject case properly the individual any prejudice. was The there actual only trial) to after the evaluation propriety Court noted that of the “[t]he unrepresented plain- to determine that an District Court’s denial of a disqualification seriously jeopardized by tiff’s often until motion will be difficult to assess such a Denial of civil trial. counsel to on impact underlying litigation its rights litigants repre- who are entitled to evaluated, normally be which is after inherently sentation under statute is judgment. final The decision whether to prejudicial. disqualify attorney ordinarily turns on support conclu- find further for our peculiar factual situation of the case holding sion in the unbroken line of cases hand____” 368, then at 449 101 U.S. S.Ct. granting disqualification orders motions for at 675. 1291.33 under section range potеntial injury Given varied Armstrong 433, McAlpin, v. 625 F.2d presented by disqual- denials of motions for (2d 1980) (en banc), 440-41 Cir. vacated ification, 1106, the Court in elected to grounds, Firestone other remanded on 449 U.S. 911, adopt uniform (1981), a rule that orders are 101 66 L.Ed.2d 835 such S.Ct. spoke non-appealable; Second Circuit issue of review- Court indicated cases: approach ability in such other lead to a would soon by case case determination ulti- erroneous, correcting and would by If the mately in piecemeal litigation result in all might at the end of the appeal case 29. We are faced with that 30. The and, uniform rule is which would trial, ification appropriate cation of Counsel bility U.Chi.L.Rev. indicated its intention to continue to do so in (9th Ass'n v. appropriate attempted mus). Firestone this court had 101 Jelco, way like the Court in Cir. of Orders petition Court 646 F.2d 1339 United at 676 n.13 cases 1966), appeal L.Ed.2d 71 in some cases. cases. Unified mandamus, stated that justify appellate 450, for writ of mandamus Denying necessary. States Dist. cert. might 468-80 in the Federal petition (citing Firestone, denied, (1967), involve Motions for because some reviewed such e. same Note, Court, Cir. (1978)). g., Chugach for writ Sewerage Agency 449 U.S. 389 U.S. and has review conclude 1981) actual problem The 370 F.2d 441 Courts, Disqualifi of manda Appeala might Prior (treating recently prior disqual at orders injury Elec. here 378, 33. E. 32. See This 584 F.2d gage 44-41 266-67 390, Supreme Electric Ad.News (1972), reprinted 101 S.Ct. See note S.Ct. at remanded 392-93 question Trust g., (2d (6th H.R.Rep.No.238, Co. Armstrong 2137, Court 911, 201, Cir. v. First Wisconsin 28 672 n.8. Cir. (7th Cir.), v. Valeron 66 supra. 1980) (en banc) 1979); other L.Ed.2d 835 Firestone, (7th expressly v. ^[1972] McAlpin, grounds, affd in First Wisconsin Cir. Corp., 92d U.S.Code 1978) Cong., reserved (1981); Corp., (dicta), 608 F.2d 449 U.S. relevant 625 F.2d (en 2d Sess. Cong. General vacated banc). Mort 1106, part, F.2d 433, 265, Corp., lost re Continental Investment party to show that he require well 1980). First, (1st emphasizes improperly he was the ease “[i]t because appellate the deference that courts owe to change would counsel. This forced to Firestone, .,” judge trial . . S.Ct. at be an appear to almost insurmountable or, conversely, confines courts of burden. proper of reviewing, their task faced Miss Bradshaw could burden rather than work supervising, clearly more insurmountable. even Second, finality require- district court. required prejudice gain Were she to show just ment avoids “the obstruction to claims judgment,34 final she reversal after permitting would come .from position being the anomalous placed sepa- and cost of a succession of harassment things wrong how did asked to she show rulings rate from the various have had and how the result would differed litigation may give which rise . . . . things capable she done were she properly; States, v. United Cobbledick trial, showing one as- might after 540, 541, 84 L.Ed. 783 right things sume she would have done avoiding concern “the Were, litigants thought civil rights trial. to debilitating judicial effect on administra- capable handling complex litigation be by piecemeal appellate disposi- tion caused trial, Congress properly appeal, or on is, in practical consequence, tion of what thought necessary pro- it would not have single controversy.” but a Eisen Carlisle appointment vide for of counsel in first 170, Jaequelin, 417 U.S. place. requirement conclude We that (1974). 40 L.Ed.2d 732 “effectively be that orders unreviewable” is concern, to the have already As first we met in the case of orders civil unequivocal discussed the nature the dis- rights plaintiffs appointed counsel.35 appoint court’s trict refusal counsel for respect Miss Bradshaw. Its decision in this Judgment Congres- Rule 4. The Final and any was final. Nor is there cause for con- sional Intent cern our decision will interfere with finality requirement encompasses a judge, the future actions of the since trial specific policies, lumped number of often our determinations of coun- general heading perjorative any sel cases do affect way not trial policy against piecemeal “the In judges’ rulings review.” on the merits. practical issue We We do not decide this here. See note believe that effect of the 23, supra. type impor of order involved is of substantial ap tance to the ultimate determination of its pealability. Eldridge, While in this case we have each of examined Mathews v. separately, n.11, n.11, elements rule and Cohen L.Ed.2d 18 satisfied, have found each is we do not In view of the mandate that Cohen suggest type analysis mean to that this is the “practical” approach construing take only proper determining method used to be microscopic § of each cri exámination exception applies whether the collateral order necessarily terion in is not isolation either the involving types in cases other orders. The proper determining ap or the best method of three Cohen criteria in- are in some instances pealability types in all of cases. terrelated. In some one element be cases finally We would note sometimes greater significance of far to the than outcome by seeking easier to arrive at correct result We others. have noted earlier two of understanding purposes an of the laws the three elements are not absolute in nature. involved, practical consequences and the of de- separability determination is at times a ciding way rather construe them one than independent relative one —“too cause another, endlessly by plodding through than reviewability itself." The determination —ef- which, mystical and obscure technicalities fectively may require a similar unreviewable — given myopic applica- when mechanistic judgment. kind of The same in some tion, justice. only can serve obstruct See respect finality instances be true with accompanying note text infra. requirement. Spanos See v. Penn Trans. Cent. Co., 1972) (3d (per 808 n.3 curiam). second, plaintiffs erroneously Where are very nature of denied As to the suspi- appointed eliminates basis for an attorney, order at issue the assistance of appeal interposed for that the has been cion policy judicial economy clearly served reasons. It has now been more tactical by permitting appeal from the order years since Miss Bradshaw filed than five denying plaintiff’s motion. The order at complaint concerning events that tran- her provides example. Only issue here a clear years ago. spired more than ten It should by affording Miss Bradshaw counsel now appeal evident that she took this expeditious can we assure the determina- adversary by delay, creating her but harass VII, tion of her under Title as that in all likelihood with the realization that her, contemplates, and relieve statute pro- without the assistance of counsel the court, defendant, and the need to ceedings might never reach a determination trial, through a sham of a muddle subse- further assur- on the merits. need no quent appeal, appeal and another trial and object. delay ance that is not her Civil following the of counsel.36 rights litigants simply do not denying review would The alternative of appointed them counsel in justice delayed, will be assure that claims,” “just rather order to obstruct but denied, likely guarantee more that the attempt do so in an to vindicate their parties resources of the court and the rights. dissipated process.37 senselessly in the The last concern involves a tension properly ap- denied plaintiffs Whеre allowing between immedi- sometimes exists pointed under the standards dis- avoiding delayed review and resolution ate judicial part opinion, cussed in II of this cause of action. There is also of the overall economy generally served will also potential over the mis- legitimate concern permitting appeal. an Affirmance of the judicial Justice allocation of resources. appointed denial of counsel district court’s judgment observed of the final Frankfurter plaintiffs may well cause such to abandon requirement support rule: “This has the of proceed their case rather than to trial in an generally applicable good considerations particu- obviously hopeless cause. This is judicial administration. It avoids the mis- court af- larly true where the of delayed chief of economic waste and of plaintiff that firms a determination cannot WOW, justice.” Radio Inc. v. John- Station showing merit make even the minimal of son, 120, 124, 1475, 1478, necessary provisions of section to invoke consideration, 89 L.Ed. 2092 This 2000e-5(f)(l)(B). Following others, such af- like the must be evaluated with firmance, pointlessness proceeding to of respect denying to the class of orders mo- trial, counsel, appointment be- tions for of counsel as whole. with or without should important prospect relitigation . . . are the inconvenience and costs 36. While the of should not generally “circumvent[ing] piecemeal be a basis for of review the one hand and the on review,” policy against piecemeal justice by delay danger In re Conti- of on the oth- (1st Corp., Corp., nental Investment 637 F.2d er.” Dickinson v. Petroleum Conversion 1980), likely prove 507, 511, the first trial here would 94 L.Ed. meaningless (1950) (footnote omitted). unless Bradshaw obtains counsel. sense, then, pros- important In an it is not the noted: Court has also pect relitigatiоn, prospect of but rather the empha- Decisions in different contexts have any meaningful litigation appoint- must await being sized that the nature of the claim as- counsel, ment of that we here. discuss consequences serted and the of deferment of judicial important in review are factors deter- recognized Supreme 37. The Court has that con- mining statutory requirement of whether a judicial economy, usually siderations of finality The role these has been satisfied. to, thought opposed to be and therefore to be may play factors is illustrated the intense- review, against, allowing balanced immediate ly “practical” approach which the Court may give way potential in view of the harm adopted, .... Cohen delaying attendant on of review the order: n.11, Eldridge, Mathews v. 424 U.S. at 331 Among always “the considerations com- n.11. pete question appealability, in the the most whole, However, as we must do in order absent such an to make apparent. come affirmance, governing type rule in- stronger possibili- a far order here there is efficient, volved effective and the interests plaintiffs attempt, will hook or ty that on, judicial economy squarely crook, trial fall side to survive a without appealable. such finding orders hope they that when ‍​‌​‌‌‌​‌​‌​‌‌​​​​​​‌‌​​‌​​​‌‌‌​‌​​​‌​​‌‌​‌‌‌​​​​‍lose the Kafka- esque they lawyer will obtain contest underlying policy judg- Another the final through post-judgment ap- trial a normal requires ment policy rule comment —the peal, ultimately they and that will have the permit litigation the courts to follow opportunity persuade ap- the court of its normal course to termination peals of the their meritoriousness of claim. merits. It obvious that this is a purpose statutory provision that also underlies the

Appeals appointed orders counsel Title VII in cases counsel wherе district court has Refusing cases. to order properly plaintiff found that the is not im- appropriate cases it un- counsel in makes pecunious genu- or that he has not amade likely will those cases follow the nor- likely ine to obtain counsel effort trial; they mal course should reach that regarding few number. concerns point, refusing to until review orders judicial economy these cases unlikely after final make balanced, closely but somewhat more on the reviewing that we would later a “nor- whole those interests are best served Caston, mal” on the trial merits. permitting plaintiffs such appeals. When at 1308. voluntarily obtaining face a choice between attorney, power it is their which within with civil are concerned here do, pursuit or needlessly delaying the rights plaintiffs, but with civil de- remedy they by engaging seek in dilato- fendants, legitimate interests of interests, ry appeals contrary their own expeditious those defendants in the resolu- presume that most they instances rights litigation, particularly tion of civil elect to obtain counsel on their own. Fur- non-meritorious cases. We are concerned thermore, plaintiff who is able to obtain also with the effect on the administration himself, but is so insistent on justice, orderly litiga- processing of obtaining appointed attorney a court impact generally, tion and the those on all willing he is his in sacrifice interest an who use our courts. We believe that all of claim,

expeditious may determination of his by these interests are furthered the decision completely well decide to his abandon claim very we reach cases here. While in few when the court of affirms the order judicial an may resources be utilized in un- counsel; him if appointed the same manner, overwhelming in the economical plaintiff compelled proceed through were majority of instances a substantial amount trial attorney without in an obtain judicial energy of time and will be saved. a decision from court of appeals regard- the judicial In of opinion, economy our concerns ing right appointed his his un- justice spectre through and the of right reasonable is his insistence such us; delay compete do not in the case before might well cause him to do so. weigh rather of finding both in favor orders appealable. type of the before us We be- We acknowledge that there be a litigation lieve that civil dis- small number in taking of cases which the posed efficiently, economically, of more of an will not serve the interests of quickly, fairly as a result of the deci- judicial economy; those would not cases today. sion we reach readily important, identifiable. More we impor- have no doubt overwhelming Congressional recognition the of the majority contrary of provi- instances the will be tance of the sion, true. Considering general need assure class of orders as a and of H.Rep. Cong., No. expeditious rights guar- (1972), vindication of the 92d 2d Sess. anteed sion. by legislative history Title VII, supports our conclu- this provi- News reprinted ^[1972] U.S.Code Cong. & Ad. The importance provision of the was understandably sparse, given sion is also floor, recognized on the Senate where the comprehensive nature the 1964 Civil controversy central the EEOC Act, Rights of which it was but a small —whether given authority would be to issue cease Humphrey Hubert part. Senator made and desist orders —was played out. Senator only passing provision reference to the Dominick offered an amendment to remove explanation his of the Dirksen-Mansfield provision authority, for cease and desist substitute, passed compro- which was as inadvertently but it also removed federal mеasure in lieu of the House bill. The mise employees from the of counsel included, said, provision light he provision. Senator Javits offered recognition that “the maintenance of a oversight; amendment to correct this may impose great poor suit burden on a agreed amendment was a voice vote.40 complainant individual . ...”38 Two impending deletion of cease desist designed provi- amendments to weaken the legislation powers ap- from the made the rejected sion were in the Senate wide pointment provision of counsel all the more margins.39 important. As Senator Javits noted: “If complainant going nothing is to have Congress provision When reenacted the court, remedy but a at least let us lock part of the 1972 amendments to Title up way in the best we can. ...” VII, again controversy; aroused little Cong.Rec. 954-55 however, policies underlying provi- Arguments larger on both sides of the sion reporting were discussed. the bill controversy over authority cease and desist houses, eventually passed both recognition rested in the main on a shared House Committee noted: speediest possible of the need for the resolu- bill, By including provision in the complaints tion of This discrimination.41 emphasizes committee the nature of policy application is effectuated pits Title VII actions more often than not give the final rule in the case parties unequal strength and resources before us. against each complainant, other. The We would add that we are here usually who is a member of a disadvan- technical, dealing important, with a but class, taged opposed by employer appellate jurisdiction limit on the infrequently who not one the na- system. federal court become Courts major producers, tion’s who has at his overly applications enmeshed in literal disposal array a vast of resources and technicalities, blinding arcane themselves to legal talent. very judi- raison d’etre of our laws and Cong.Rec. (1964), reprinted . right employee, 38. 110 tant for a Government EEOC, Legislative History not, main, of Titles VII XI and in the individuals involved are the Rights (1968). salaried, of the Civil high Act of 3004 in that those who would be likely equal employment op- to sue in these portunity fairly Cong.Rec. (Remarks people. 39. 110 14196 cases are modest of Senator Thurmond); (Remarks id. at 14201 of Senator (1972) (Remarks g., Cong.Rec. Ervin). 41. E. Williams); (Remarks Senator id. of Senator Dominick); (Remarks id. at 943 of Senator Cong.Rec. 40. 118 Senator Javits Humphrey); (Remarks id. of Senator Tal- noted: madge); (Remarks id. at 3967-69 of Senator President, very important right Mr. that is a Javits). individual, just very impor- for the as it is a the “in Such result discrimination cases such system.42 cial circumstances litigants pro- to rights compelled were civil just.” as the court deem Three factors through meaningless ceed their own and on emerged have as relevant to the exercise of being permitted wasteful trials before the court’s discretion under district this appointed right their counsel. establish statutory broad mandate. The court is re What Justice Frankfurter stated so elo- quired (1) plaintiff’s to assess: the financial important to an quently regard with rule of resources, (2) plain efforts made equally applicable to procedure civil sec- (3) tiff to secure and whether the appointment tion 1291 the context Caston, plaintiff’s claim has merit. civil cases: counsel 1308-10; F.2d v. see also Luna Interna important business of this Not least tional Aerospace Ass’n Machinists & guide is to lower courts and the Court Workers, (5th 1980).43 614 F.2d Cir. and Bar in the effective economical con- standards, adopt, Under which we these litigation. That is what is in- duct district court’s error in Miss Brad case. The immediate issue volved this shaw’s motion for of counsel is impor- of one is the construction clear. Rules Procedure. That con- tant of Civil depends upon struction in turn our basic Normally, the district court’s deci toward those Rules —whether we attitude subject only sion will review for an words, very their lie in take force to their abuse of discretion. White v. United States formulas, treating talismanic them as Co., Pipe Foundry 646 F.2d & they applied to be whether believe 1981); Spanos Cir. v. Penn Central Trans doing justice as rational instruments for Co., (3d portation man man in coming between cases case, 1972) curiam). however, (per before federal courts. rep court’s not district decision does York, R., N. H. R. Johnson New & H. judgment necessary resent the reasoned 48, 55-56, 125, 129-30, 73 S.Ct. U.S. 97 application of that dis standard. “[S]uch J., (1952) (Frankfurter, dissenting) L.Ed. 77 cretionary choices are not left to court’s (emphasis added). ‘inclination, judgment; but to its and its legal guided to be sound II. APPOINTMENT OF COUNSEL principles.’ Paper Co. v. Albemarle 405, 416, Moody, Rights provides 95 S.Ct. 1964 Civil Act employment (1975) (quoting of counsel in 45 L.Ed.2d 280 United Frankfurter, admired, certainly particular Justice who facts other similar factors so warrant understood, vigorously applied be taken technical into account district principles, they courts, long they when served their intended so are treated in a manner “ function, dangers statutory pro- policy noted ‘an almost su- with consistent perstitious respect agree reverence for the dark technicalities the Fifth vision. in this .,’ judges impris- Circuit, . . belief [the] must which in its most recent decision noted: devising,” oned in technicalities of their own long So as a court confines itself to district judicial approach and a that holds “obedience considerations, or an evaluation of these sim- way formality justice.” to lifeless [as] particularly ilar factors relevant York, R., Johnson v. New N. H. H. R. given application, court’s facts of a district 48, 62, 125, 132-33, 97 L.Ed. 77 denying appointed will be action (1952) (Frankfurter, J., dissenting) (quoting Sir subject to review of discre- an abuse Parke, James 15 D.N.B. career of events, tion. At all courts should “[district Parke). Baron by pro problems be sensitive to the faced se litigants responses innovative their appli- 43. The three factors listed the text are them.” They usually only cable in all cases. Co., Foundry Pipe United 646 White v. States relevant factors. The record before us does not Caston, (1981) (quoting F.2d F.2d provide any for basis consideration other 1310). sug- in factors this case. We do not mean to however, gest, other where the cases Burr, decision, (C.C.Va. The district court’s 25 F.Cas. the same States (No. 14,692)(Marshall, J.)). 1807) C. As was order in which it denied Miss Bradshaw’s Caston, the ease in are unable to appointment first for “[w]e motion conclude from the record that the district proceed allow Miss Bradshaw to in forma exercised a well-in- court reasoned and pauperis, a fortiori resolved the first issue may discretion which we formed review.” in her A lesser Caston favor. show- F.2d at 1308. ing indigency required satisfy is appointment test for of counsel. See Ca- reason offered the dis ston, 1309; 556 F.2d at Petete v. Consoli- court for ap trict the motion for Freightways, F.Supp. dated pointment suggestion of counsel was its (N.D.Tex.1970). merit, “if plaintiff’s claim has also appear he Miss Bradshaw has satisfied the easily secure light statutory provision requirement; counsel in of the second she has shown more attorney’s . requisite degree diligence award of fees . . . Con than the in her gress prospect indeed intended the of an efforts to secure counsel. Affidavits filed prevailing party award of fees to the as a support with the district court of her to “make it a plaintiff means easier for of motion indicate that she contacted more bring limited means to a meritorious suit.” attorneys, than ten each оf whom declined (1964) (Remarks Cong.Rec. represent except upon her financial Humphrey). provision Yet the al Senator terms that she was unable to All meet. lowing appointment of counsel indicates required plaintiffs that can be under this congressional recognition of the fact aspect they of the test is that make what an award may prove of fees an insufficient reasonably diligent can be considered a ef- plausible incentive. The only reason for fort under the circumstances to obtain provision Congress’ enactment of the was counsel. There be factors that would recognition that some civil claimants justify a lesser effort than that made cases would be unable to meritorious here,45 but it is clear that Miss Bradshaw obtain counsel. The district court’s reason expect- may reasonably has done all that ing statutory provision would render the required “to exhaust ed. not be She nugatory; pro of counsel legal directory” prerequisite as a vision for of counsel would be Caston, appointment of counsel. 556 F.2d wholly unnecessary if all meritorious claims at 1309. attracted retained counsel. If the district requirement, plaintiff’s that the The final uniformly adopted, court’s rationale were merit, claim shown to have some is also there would never be a case in which the earlier, As we noted satisfied this case. congressional provision could be utilized. Thus, regarding determination “rea- EEOC reasoning the district court’s is direct given appropriate ly contradictory pur sonable cause” should be to the mandate and pose statutory provision.44 ap- of the weight deciding aspect recently support As Miss Bradshaw’s filed in The Fifth Circuit faced the same affidavits indicate, suggestion, response, prob- and its with which we of her motion there is also the agree fully, unequivocal: attorneys willing “The district lem that otherwise to take the seeming assumption court’s contingency may prove . . . that meritori- basis unwill- case [ap- ous claims will never need the benefit of ing do so without an advance substantial pointed completely at odds with counsel] costs. Congress’ implicit contrary.” conclusion to the White, See, g., 646 F.2d at 206-07 n.7. e. Luna v. International Ass’n of Workers, Aerospace Machinists & Caston, See also 556 F.2d at 1309: 1980) (contacting four attor- We are not unmindful of the fact neys requirement satisfies of reasonable dili- areas, unpopularity some either because of gence). unfamiliarity, particular plaintiff may attorney willing unable to locate who prosecute even a meritorious claim.

1320 pointment question.46 determining, pursuant of counsel Where the to 42 U.S.C. 2000- § charged agency with enforc- 5(f)(1)(B), administrative ap- whether counsel should be statute, ing the has made determination pointed particular cases. We hold that is reasonable cause to believe there Bradshaw Miss has met those criteria. plaintiff the victim that the of discrim- The decision of district court is re- case, ination, as it has in Miss Bradshaw’s versed, pro- and the for case remanded ordinarily need make the court no further ceedings opinion. consistent this purposes of inquiry is, The counsel. EEOC determination WALLACE, Judge, dissenting: Circuit course, subject to rebuttal the defend- ants, only very to a limited but extent.47 ap- would not this I reach merits of ignoring no this case basis exists peal properly because this case before The claim is there- EEOC determination.48 jurisdiction us. We lack to hear inter- provi- fore purposes meritorious for locutory appeal denying ap- regarding appointment sion of counsel. pointment of counsel in a Title VII case.

Therefore, respectfully I dissent.

CONCLUSION jurisdiction We are a court limited power beyond have no reach out our We orders civil conclude that jurisdiction Supreme to correct errors. The final, rights plaintiffs appointed counsel are recently Court cautioned that “interloc- they are important “too to be denied utory orders are not ‘on the review,” from, they “separable and that ground they may mere be erroneous.’ to,” Cohen, and collateral the cause itself. Risjord, Firestone Tire & Rubber Co. v. 449 546, 337 69 also U.S. S.Ct. 1226. We 378, 675, 368 at U.S. 101 S.Ct. 669 at 66 unaccept conclude there is clear and “ (1981) (Risjord), quoting L.Ed.2d 571 Will able risk that ‘crucial collateral claims ’” States, n.6, v. 389 United U.S. Firestone, be lost . . . [will] n.6, 19 L.Ed.2d S.Ct. (quoting at 674 S.Ct. Mathews v. El appeals from which Bradshaw n.11, dridge, 424 U.S. at 331 at 901 satisfies neither nor n.11), 28 U.S.C. § unless the right appeal from such exception collateral order as set forth in recognized, orders is and that immediate Corp., Cohen v. Indus. required review is Beneficial Loan “so not to cause . . . potentially (1949) irreparable injuries 93 L.Ed. 1528 suf (Cohen). Therefore, Firestone, jurisdic- fered” in those cases. we have no id. We thus hold that orders Title VII tion decide the case.1 plaintiffs appointed counsel are immediate Supreme emphasized Court has ly appealable under section 1291. strong policy behind the rule that adopt only criteria following judg- three set forth are to be made final opinion, for use district courts in on the Similarly, ment merits.2 Court persuasive. accompanying supra. rely exclusively text See note 20 Some sidered on Sears, Co., Caston Roebuck & 556 F.2d 1305 accompanying supra. Caston, text (5th 1977). See note 20 Cir. which misconstrues doctrine, para- Cohen contains one supra. 48. See note 20 graph analysis. majority While the more up paucity reasoning, than makes for this I recently position 1. The Tenth Circuit took this faulty. analysis its find Mason, in Cotner v. U. S. Officer Probation Supreme recently 2. The 1981). Court has F.2d discussed I do not hesitate tо importance judgment simply of the final rule: reach this conclusion oth- because some have, rule, my judgment, incorrectly er party ordinarily circuits This that a must raise opposite opinions single reached conclusion. The following all claims of error majority, merits, cited at footnote so contain serves num- analysis they hardly little important purposes. emphasizes can con- ber It important exception appel- Cohen consider is involved. has stressed that Our jurisdiction depends has not carried her late neither on the narrow. Bradshaw below, magnitude showing of the order of the error nor on where heavy burden appealed particular from falls within the “small class” the claim falls in each individual appealable judge’s pecking significant under the Cohen ex- order of areas of of orders Cohen, 546, supra, 337 at 69 law. ception. U.S. at 1225.

S.Ct. agree I majority Nor can with the cases, Coopers Lybrand Livesay, important In 437 the nature of Title VII as & are, necessarily provides as they 57 L.Ed.2d 312 for inter- U.S. S.Ct. (1978) locutory appeal Congress of this order. (Coopers Lybrand), & the Court set finality pre- determined that be the requirements forth the should an order must requisite appellate jurisdiction. Con- meet to be under Cohen : “[T]he gress jurisdic- expanded appellate has not conclusively order must determine the dis- tion to reach this of denial puted question, important resolve an issue counsel, though it certainly could have done completely separate from the merits of the provision so when it enacted the of Title action, effectively and be unreviewable on permitting appoint VII the district courts to judgment.” from a final Id. at counsel in Title VII cases. See U.S.C. not, language at 2458. This does 2000e-5(f)(l). Further, Congress did not § majority implies, alter the Cohen test. make a matter of requirements merely These three a dif- right, but rathеr left it to the discretion of impor- ferent formulation of the Cohen “too Therefore, Congress the district courts. indepen- tant to be denied review and too anticipated must have that some Title VII language quoted dent the cause itself” prosecuted propria perso- cases would be by the majority. Ante at 1306. Co- See na. hen, at 377 U.S. 69 S.Ct. at 1226. The majority’s Sears, quotation ‍​‌​‌‌‌​‌​‌​‌‌​​​​​​‌‌​​‌​​​‌‌‌​‌​​​‌​​‌‌​‌‌‌​​​​‍from Caston v. Co., Roebuck & 556 F.2d 1305 I 1977), suggests impor- that the Cohen “too I application turn now to the of the Coo- language tant” requires courts to determine pers Lybrand agree I analysis. & with the significance question of the substantive majority that the order at being appealed. Coopers Lybrand & makes case, final. least under the facts of this important” language clear that the “too Coopers This is the one of the three & refers appellant to whether the can obtain Lybrand requirements clearly'Satis- that is question

review of judgment. after final fied in this case. The majority’s language use of this necessary my Caston indicative of the fundamental er- It is not for me to rest majority’s approach. ror of the position separability whole on the from the merits majority appears requirement, requirement to believe that we can because the third accept jurisdiction observe, however, perceive obviously lacking. when we an in- is so I justice or when an area problems majority’s of law that that there are with the appellate appeals rulings

the deference rate from the various courts owe to rise, judge initially litigation give the trial as the individual which a from its upon many questions judgment.” entry called to decide the initiation to Cobbledick States, law and fact that occur in the course of a v. United 309 U.S. [60 540, 541, Permitting piecemeal (1940)____ appeals trial. 84 L.Ed. The rule 783] independence important purpose pro- undermine the of the District also serves the moting Judge, judicial special as well as the Ei- role that individ- efficient administration. plays addition, 156, 170, judicial system. Jacquelin, ual in our sen v. & Carlisle 2140, 2149, (1974). the rule is in accordance with the sensible 40 L.Ed.2d 732 policy “avoiding] just Risjord, the obstruction to Firestone Tire & Rubber Co. v. permitting claims that would come from 101 S.Ct. 669 at sepa- harassment and cost of a succession of L.Ed.2d 571 constitutional, Second, holding separable problems.3 that the order is from the the dis- One purposes require- judge may merits. trict examine the factual issues preclude ment is which enmesh in the case to counsel is determine whether of appeals investigate the court in the merits of a case needed to marshall early Lybrand, stage. Coopers 437 facts. If the litigant can handle factual issues, may it necessary appoint U.S. at 98 at 2458. In determin- not be to ing Freake, appoint supra, whether to counsel for a See Maclin v. Title counsel. VII plaintiff, judge district must make 887-888.4 a the plain- some determination of whether Thus, judge may justified district a Sears, tiff’s claim merit. Caston v. has See examining closely the merits to determine Co., (5th & 556 F.2d Roebuck Cir. plaintiff’s substantially whether case is 1977). course, likely to succeed. Of in his calcula- tions, judge judge It is a true that district must make the district should assess the deciding prose- a similar determination in whether likelihood of success of the case when counsel, grant proceed pauperis. to leave to in forma than in propria cuted rather appealable. judge Orders such The persona. leave district should balance Lipscomb States, hardship v. United 301 F.2d 905 the to counsel with the benefit (9th 1962). plaintiff. Cir. The involvement To determine whether a dis- situation, merits in the pauperis judge’s appointment in forma trict of decision on the however, discretion, slight. merely is The is standard counsel constitutes an abuse оf plaintiff’s whether the case is frivolous or we would have become at least some- 1915(d); malicious. 28 v. U.S.C. Torres what enmeshed in the merits. § Garcia, (9th 1971). 444 F.2d Cir. majority’s I must take issue with the

It quite possible judge is that a district unfortunate contention that an EEOC de- usually should become much more involved in the termination of reasonable cause will determining appoint merits in whether to be sufficient to establish the “merit” re- determining counsel than he does in quirement wheth and thus obviate the need to to grant proceed pau majori- er leave to in forma become enmeshed the facts. The First, judge peris. ty authority the district should hesi cites no for its conclusion that appoint losing tate counsel a case. an EEOC reasonable cause determination Freake, See Maclin v. 650 F.2d 885 at 887- creates presumption plain- a in favor of (7th 1981). Instead, provision Cir. I know of no tiff. it relies on the EEOC’s brief losing of payment appointed Although counsel in this ease. Ante at n.20. there under Title VII. pre-trial signifi- See Beckett v. Kent authority is little (W.D.Mich. County, F.Supp. determinations, 74 n.4 cance of EEOC a reasona- 1980); Co., v. Sol I.N.A. Ins. 414 F.Supp. interpretation is ble that an EEOC determi- (E.D.Pa.1976). nation, To appoint counsel to a finding whether reasonable cause non-frivolous, not, likely losing jurisdic- but case significant only without is to establish compensation significant, possibly creates pursuant tion for a civil action to Title VII. appointment legal provi- problems. agree judge 3. Whether the of I counsel that the district sion violates the determining Thirteenth Amendment should consider appoint whether to open question, express observe, however, and I no view on it. I counsel. Co., Pipe Foundry See White v. United successfully States prosecuted & Bradshaw has now two 1981). merely n.3 I attempts. in this court in her two observe that in the exercise of his discretion Many attorneys hаve not fared as well. Fur- appointing counsel, judge may the district con- ther, case, repre- the defendants in this who are possibility attorney may sider the that an have jurisdictional sented conceded the complex to devote substantial time area of sharply. Thus, issue has divided us so it compensation. the law without appear that lack of counsel does not inherently prejudice party. majority propria makes much of persona litigant’s inability complex to handle defendant, 2000e-5(f)(l); Hyatt benefit See U.S.C. cannot be § Further, majority done. Corp., bootstraps United Aircraft F.R.D. its (D.Conn.1970). prohibition n.4 of a defendant’s attack on the merits an EEOC determination into the problem majori- A second arises with plaintiff’s satisfaction the “separability” significance ty’s treatment of the of EEOC Coopers Lybrand. But, element of proceedings. majority posi- takes the majority’s holding, plaintiff virtue finding tion an EEOC of reasonable still denial plaintiff’s cause establishes the merit of the attempted after he to attack an (cid:127) purpose case finding, unfavorable EEOC even though counsel, but that an EEOC determination separability element not satisfied. no cause reasonable fails establish lack This is not defensible. merit. Ante at 1309 & n.20. An finding of EEOC no reasonable cause is not jurisdictional filing

a bar the of a civil II Douglas suit under Title McDonnell v. VIL. I would hold Bradshaw has failed to Green, 792, 798-99, 1817, 411 U.S. 93 S.Ct. show that order the her counsel is 1822-23, (1973). L.Ed.2d is This rule effectively on appeal unreviewable from a jurisdictional considerations, based on how- judgment. showing, final Absent this ever, findings not on notion that of no is appealable. appealable order not An or- are inherently reasonable cause more sus- right must der involve “an asserted pect findings than cause. reasonable See legal practical value of which would be majority any explаna- The id. fails offer destroyed if it were not vindicated before disparate tion for its treatment of these McDonald, trial.” United States v. 435 U.S. findings. two EEOC 850, 860, 1547, 1552, 56 L.Ed.2d 18 (1978) added). (emphasis right The claimed permit plaintiff majority The a would must such “denial of immediate attack an EEOC determination no rea- impossible any would render review review sonable cause the merits. Ante at n.20. Ryan, whatsoever . . .. United v. States require This pre-trial would involvement 1580, 1582, 402 U.S. S.Ct. with the merits of the ease. Under the added). (1971)(emphasis L.Ed.2d 85 view, majority’s if the district court still determined that there was insufficient mer- very requirement This is narrow. It is it to the to appoint plain- case appellant not sufficient that the show that appeal. tiff could take an interlocutory is injury, there some or that the erroneous would then necessarily become enmeshed in will proceedings. taint the rest of the plaintiff’s factual issues in the raised Rather, appellant must show that the determination, attack on the EEOC’s in vio- necessarily injury will causes requirements Coopers lation of the appealed immediately. irreparable unless Lybrand. point, To illustrate collateral order Inexplicably, majority not ac- rejecting a criminal claim of defendant’s right plain- cord defendant the same as a jeopardy is immediately double tiff attack the merits of an unfavorable correct, has, if is he because he Court finding. majority EEOC The would then held, right put not to be to trial. compound inequity by requiring this this require judgment To him wait until final unchallenged EEOC determination of rea- right his would result in destruction of satisfy require- sonable cause to the merit put Abney not to be to trial. United Thus, according States, ment. majority’s 431 U.S. S.Ct. reasoning, judge may (1977). Similarly, district become L.Ed.2d 651 a criminal enmeshed in the early stage may appeal facts at an defendant denied bail immedi- when it may plaintiff. Boyle, benefit the ately. If Stack v. 342 U.S. proceedings. loses, right asserting he If Bradshaw the mis- 96 L.Ed. 3 likely free until he is This take would is to be convicted. reversible error on appeal. It is conceivable preserved if he is forced to that Bradshaw right cannot be harm, some residual though suffer appeal. that conviction wait until after speculative Possibly, at best. she Risjord, at See make some erroneous tactical decision that situations, rights sought 675. In both prejudice her on retrial with counsel. extinguished by to be vindicated are however, It possible, is also that she will time a final is entered. lose on prejudicing the merits without her- Conversely, several kinds of orders are prevail self on retrial or that she will with- immediately appealable not because no out counsel. I fail to see the “inherent extinguished, though even prejudice” majority on which the relies. orders, erroneous, will proceed- if taint the Supreme Court has stated that before ings may prejudice parties. one of the effectively it will find an order unreviewa- example, For the denial of a motion to judgment, ble after there must be a Risjord, disqualify attorney, and the de- concrete, showing irreparable inju- of some judge, nial of a motion for recusal of a ry, merely possibility injury. Ris- Washington, United States v. 573 F.2d 1121 jord, 375-76, 101 S.Ct. at 674- 1978), immediately appeal- are not majority point 75. The has failed to to a situations, able. In both of these the risk is single injury irreparable concrete is run that a full trial will be conducted under meaning within the proge- of Cohen and its taint an erroneous order that will ny. Speculation simply will not suffice. require repeated. Further, the trial to be recognize I importance ap- discovery may compel an erroneous pointment appropriate of counsel in Title production privileged information prejudiced VII cases. One the failure of might seriously prejudice disclosing a judge appoint district counsel is not Nonetheless, party. discovery orders are appeal left with judgment after as his or generally appealable not judg- before final her Appellate avenue of relief. assist- Legal ment. Society Dunlop, Aid requested by filing petition ance can be a (9th 1980) (per F.2d curiam). Cir. for a writ of mandamus. 28 U.S.C. See These two lines of cases can be distin- 1651; Bauman v. United District § States guished. involving appealable In the cases Court, 1977). 557 F.2d 650 But orders, interlocutory appellant could re- requests Bradshaw by appeal. review We adequate ceive no remedy appeal after guidelines have been left with clear con- judgment. already He would have lost the cerning jurisdiction, however. The ma- preserve. he seeks to In the cases in jority overstepped has the bounds described which orders have non-appeala- been held guidelines. particular, those it has ble, appellant can generally be made changed Coopers Lybrand require- & whole by being granted after trial a new ment that effectively order be unre- trial. Bradshaw has this remedy same appeal requirement viewable on to a her, available to Forcing her after trial. appellant possibility show a of some even erroneously, proceed to trial with- prejudice by having to wait until after final out attorney deprive does not her forev- judgment appeal. By relaxing or elimi- er any right irreparable nor cause her nating Coopers Lybrand requirement, harm. Unlike litigant erroneously denied doing the majority perceives is what it to be proceed leave to pauperis, in forma Brad- justice may in this case. The next case may shaw By proceeding continue her suit. present an order for which an immediate to trial without she forfeits no just appeal may majori- not seem so right. I concede that an erroneous order ty, majori- appellant may but the cite the may taint the rest of the ty’s opinion in this case to make a tenuous prejudice ease, showing particularly to obtain sufficient one with a weak may be interlocutory appeal. able to force a interposing better ad- settlement legal appeals dragging principles vised adhere to sound otherwise out the liti- increase, gation. legal change As fees the defend- perception than to them to fit our may paying ant become more interested particular how a case should be decided. plaintiff off the paying than in his or her Thus, attorneys. majority has created Ill tactic, delaying judi- which not does serve majority agree ought I that we economy cial and which serve as a judicial economy. I to be concerned about weapon ain strike suit. agree is cannot that its decision in this case Because the harm that Bradshaw side, side, losing economical. One al- speculative repairable suffer is both immediately has an ways appeal- interest appeal judgment, after I from final ing orders. If it can vindicate its views denying appointment hold that the order immediately, it either will not have to con- counsel in Title VII action effec-

tinue in the lawsuit all will be able to tively appeal unreviewable on from a final proceed possibility without the of retrial. judgment and therefore is not Thus, side, to one immediate review will until judgment. final I would dismiss the always Congress, seem economical. by en- appeal jurisdiction. for want of acting section mandated that judgment. hear these after economy preserved

Judicial by the final generally requires rule which the appeals in one case be heard one ‍​‌​‌‌‌​‌​‌​‌‌​​​​​​‌‌​​‌​​​‌‌‌​‌​​​‌​​‌‌​‌‌‌​​​​‍time, judgment. Thus, only after final one and, necessary, only if retrial is one

required. By permitting interlocutory ap- peals, add to the of ap- number America, UNITED STATES peals, spent by parties increase the time Plaintiff-Appellant, whole, appeal on and on the case as a v. delay proceedings in the district court.' I agree cannot the majority has struck WIGA, Defendant-Appellee. Jozsef Tibor judicial economy blow for in this case when it has requirements relaxed the America, UNITED STATES interlocutory appeals. Plaintiff-Appellee, majority’s suggestion plaintiffs appeal will not proper ap- denials of WIGA, Defendant-Appellant. Jozsef Tibor pointment of counsel is unreasoned. The majority’s premise plaintiffs entire is that 80-1635, Nos. 80-1724. attorneys without are unable to make cor- of Appeals, United States Court legal rect determinations themselves. Ninth Circuit. Yet, majority plain- assumes that such tiffs will be able to assess the correctness of Argued April 1981. ruling a district court’s and their likelihood Aug. Submitted appeal. of success likely, they More will any ruling against think that made them is Decided Dec. Thus, wrong. they from correct rulings as often as incorrect ones.

Further, plaintiff’s pursuing interest appeal plaintiff, be substantial. A notes proceed pauperis. in forma Garcia, Id. at 116. In Torre v. 444 F.2d 537 solely proposi- 17. We cite Roberts here 1971), upheld the district court’s requirement tion that a the court deter- pauperis petition dismissal of an in forma mine whether a claim has merit in order because the district court found that “the ac- separate decide an issue that is otherwise Perhaps tion is frivolous and malicious.” Id. and collateral to the cause of action itself does way requirement the best to characterize not transmute that issue into one which is not relating pauperis in in forma meritoriousness separate

Case Details

Case Name: Nancy S. Bradshaw, Individually and on Behalf of Others Similarly Situated v. Zoological Society of San Diego

Court Name: Court of Appeals for the Ninth Circuit

Date Published: Dec 7, 1981

Citation: 662 F.2d 1301

Docket Number: 79-3051

Court Abbreviation: 9th Cir.