    Case: 18-40825   Document: 00515262227     Page: 1   Date Filed: 01/07/2020




         IN THE UNITED STATES COURT OF APPEALS
                  FOR THE FIFTH CIRCUIT
                                                                 United States Court of Appeals
                                                                          Fifth Circuit

                                                                        FILED
                                No. 18-40825                      January 7, 2020
                                                                   Lyle W. Cayce
                                                                        Clerk


ELLIOTT WILLIAMS,
                                          Plaintiff–Appellant,
versus
JEFFREY CATOE, Senior Warden, Coffield Unit;
WILLIAM WHEAT, Major of Security, Coffield Unit;
PAMELA PACE, Practice Manager, UTMB, Coffield Unit;
JACINTA ASSAVA, Nurse Practitioner, UTMB, Coffield Unit;
JANE AND JOHN DOE; DOCTOR PAUL W. SHRODE; VICKI WHITE,
                                          Defendants–Appellees.




                Appeal from the United States District Court
                     for the Eastern District of Texas




Before OWEN, Chief Judge, JONES, SMITH, STEWART, DENNIS, ELROD,
SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,
DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.

JERRY E. SMITH, Circuit Judge:

      We hold that in an action brought under 42 U.S.C. § 1983, a district
court’s interlocutory order denying a motion for appointment of counsel is not
immediately appealable under the collateral-order doctrine. The panel opinion
     Case: 18-40825        Document: 00515262227         Page: 2     Date Filed: 01/07/2020



                                       No. 18-40825
in Robbins v. Maggio, 750 F.2d 405 (5th Cir. 1985), is overruled. This appeal
is dismissed for want of jurisdiction.

                                               I.
       Elliott Williams, as a state prisoner, sued prison personnel (the “state”)
in forma pauperis via § 1983, claiming deliberate indifference to his serious
medical needs in violation of the Eighth Amendment. Williams filed a notice
of interlocutory appeal from the district court’s denial of his motion to appoint
counsel. The appeal was briefed on whether Williams satisfies the steep re-
quirements for appointment of counsel in § 1983 cases. 1

       In its brief, the state acknowledged that any panel would be bound, per
the rule of orderliness, to recognize appellate jurisdiction under Robbins. 2 This
court granted the state’s petition for initial en banc hearing as an efficient
means of revisiting the issue of immediate appealability without requiring the
matter to percolate uselessly through a panel. We appointed counsel for brief-
ing and oral argument on Williams’s behalf. 3



       1 “The trial court is not required to appoint counsel for an indigent plaintiff asserting
a claim under . . . § 1983 . . . unless the case presents exceptional circumstances.” Ulmer v.
Chancellor, 691 F.2d 209, 212 (5th Cir. 1982) (Rubin, J.) (citing Branch v. Cole, 686 F.2d 264,
266 (5th Cir. 1982) (per curiam)). “In considering motions for appointment of counsel in
section 1983 cases, district courts should make specific findings on each on the Ulmer factors
rather than deciding the motion in a conclusory manner” (citing Ulmer, 691 F.2d at 213).
Jackson v. Dall. Police Dep’t, 811 F.2d 260, 262 (5th Cir. 1986) (per curiam).
        This appeal involves nothing more than the jurisdictional question of when a § 1983
plaintiff can appeal the denial of counsel. We do not speak to the general standard under
which a district court determines whether to appoint counsel, to whether that standard is
satisfied in this or any other case, or to attorneys’ ethical obligation to provide pro bono
assistance.
       2   See, e.g., Leachman v. Harris County, 779 F. App’x 234, 238 (5th Cir. 2019) (per
curiam).
       3 There is irony in the fact that we appointed counsel to assist the court in deciding
whether Williams can immediately appeal the denial of counsel. The court thanks counsel
for her thorough and professional advocacy.
                                               2
    Case: 18-40825      Document: 00515262227       Page: 3    Date Filed: 01/07/2020



                                    No. 18-40825
                                             II.
      “While the collateral-order doctrine will necessarily allow some appeals,
otherwise impermissible under 28 U.S.C. § 1291, the doctrine is a ‘narrow
exception,’ Dig. Equip. Corp. v. Desktop Direct, Inc., 511 U.S. 863, 868 . . .
(1994) . . ., ‘selective in its membership,’ Will v. Hallock, 546 U.S. 345, 350 . . .
(2006).” 4 In Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 546
(1949), the Court carved out an exception to the final-judgment rule. All agree
that the collateral-order doctrine has three essential requirements: “[T]he
order must [1] conclusively determine the disputed question, [2] resolve an im-
portant issue completely separate from the merits of the action, and [3] be ef-
fectively unreviewable on appeal from a final judgment.” Coopers & Lybrand
v. Livesay, 437 U.S. 463, 468 (1978).

      Recognizing that standard, the Robbins panel, 750 F.2d at 412−13,
decided that all three prongs had been met. Because the test is conjunctive,
we address only the third element. Robbins found it satisfied, explaining that
the question “is not whether a claim becomes jurisdictionally unreviewable,
but whether it becomes effectively unreviewable.” Id. at 413. “[T]here remains
a great risk that a civil rights plaintiff may abandon a claim or accept an
unreasonable settlement in light of his own perceived inability to proceed with
the merits . . . .” Id. at 412. “[I]t is the likelihood that a litigant will not be
able effectively to prosecute his claim or to appeal that determines the review-
ability of that claim . . . .” Id. at 413.

      That was error that we now correct. In vigorous dissent in Robbins,
Judge Garwood pointed out that




      4 United States v. M/Y GALACTICA STAR, 784 F. App’x 268, 276 (5th Cir. 2019) (per
curiam) (unpublished).
                                             3
     Case: 18-40825      Document: 00515262227        Page: 4     Date Filed: 01/07/2020



                                     No. 18-40825
      [a] party capable of perfecting pro se an appeal from an order de-
      nying counsel is likewise capable of so perfecting an appeal after
      judgment . . . . [T]he large number of pro se tried cases where pro
      se appeals have been perfected in this Court should suffice to dem-
      onstrate that the denial of . . . counsel does not effectively prevent,
      or ultimately wholly discourage, such cases from being actually
      tried and appealed.
Id. at 417 (Garwood, J., dissenting).

      Even in the small percentage of cases in which the lack of counsel in the
district court may restrain a § 1983 plaintiff in the assertion of his rights, 5 the
fact “that a ruling ‘may burden litigants in ways that are only imperfectly re-
parable by appellate reversal of a final . . . judgment . . . has never sufficed’” to
breach the collateral-order doctrine.           Mohawk Indus., Inc. v. Carpenter,
558 U.S. 100, 107 (2009) (quoting Dig. Equip., 511 U.S. at 872). As Judge
Garwood explained, conferring appealability on interlocutory orders denying
counsel
      represents . . . a major and serious invasion of the values [of] the
      final judgment rule . . . . It makes highly probable multiple appeals
      in every in forma pauperis civil case in which counsel is requested
      and denied . . . . If counsel is requested . . . and then denied, there
      will be an appeal. Though there is an affirmance, if the request is
      renewed and again denied when an amended pleading is filed or
      following discovery or rulings on motions to dismiss or the like,
      then there will still be another appeal. Perhaps then we will decide
      to remand . . . because we regard the trial court’s order as insuffi-
      ciently specific in its reasons for denial. If denial again follows,
      there is yet another appeal, the third prior to trial.
Robbins, 750 F.2d at 417−18 (Garwood, J., dissenting).




      5  In its en banc brief, the state makes the unchallenged assertion that “in the past
34 years, only four interlocutory appeals have resulted in reversal of an order denying ap-
pointed counsel in a section 1983 case and a remand with instructions either to appoint
counsel or to reconsider.”
                                            4
     Case: 18-40825         Document: 00515262227        Page: 5    Date Filed: 01/07/2020



                                        No. 18-40825
                                              III.
       Although adherence to Coopers & Lybrand, coupled with the practical
considerations highlighted above, easily compels a reversal of Robbins, we take
additional comfort in the fact that nine federal circuits have held that orders
denying counsel in § 1983 cases are not immediately appealable. 6 Only one
disagrees. 7 And in the event that stare decisis is a concern, Williams’s counsel
concedes that there is no reliance interest in maintaining Robbins.

       Therefore, in an action brought under 42 U.S.C. § 1983, a district court’s
interlocutory order denying a motion for appointment of counsel is not immedi-
ately appealable under the collateral-order doctrine.                 Robbins v. Maggio,
750 F.2d 405 (5th Cir. 1985), is OVERRULED. 8 The appeal is DISMISSED for
want of jurisdiction.




       6 See Appleby v. Meachum, 696 F.2d 145, 146 (1st Cir. 1983) (per curiam); Welch v.
Smith, 810 F.2d 40, 42 (2d Cir. 1987); Smith-Bey v. Petsock, 741 F.2d 22, 26 (3d Cir. 1984);
Miller v. Simmons, 814 F.2d 962, 964 (4th Cir. 1987); Henry v. City of Detroit Manpower
Dep’t, 763 F.2d 757, 759 (6th Cir. 1985) (en banc); Randle v. Victor Welding Supply Co.,
664 F.2d 1064, 1067 (7th Cir. 1981) (per curiam); Wilborn v. Escalderon, 789 F.2d 1328, 1330
(9th Cir. 1986); Cotner v. Mason, 657 F.2d 1390, 1391−92 (10th Cir. 1981) (per curiam); Holt
v. Ford, 862 F.2d 850, 851 (11th Cir. 1989) (en banc).
       7   See Slaughter v. City of Maplewood, 731 F.2d 587, 588−89 (8th Cir. 1984).
       8  Avoiding the law of unintended consequences, we limit this holding to matters
brought under 42 U.S.C. § 1983, though logically the same should apply to claims grounded
in its federal-actor counterpart, Bivens v. Six Unknown Named Agents of Federal Bureau of
Narcotics, 403 U.S. 388 (1971).
                                               5
