                     United States Court of Appeals
                            FOR THE EIGHTH CIRCUIT
                                     ___________

                                     No. 06-3773
                                     ___________

Timothy Nelson,                     *
                                    *
           Appellant,               *
                                    * Appeal from the United States
      v.                            * District Court for the
                                    * Eastern District of Missouri.
Dorn Shuffman; Diane McFarland;     *
Karen Adams; Alan Blake; Martha     * [PUBLISHED]
Bellew-Smith; Linda Meade,          *
                                    *
           Appellees.               *
                               ___________

                              Submitted: December 7, 2006
                                 Filed: January 25, 2007 (Correction: 02/02/07)
                                  ___________

Before BYE, COLLOTON, and SHEPHERD, Circuit Judges.
                            ___________

PER CURIAM.

       Timothy Nelson appeals the district court's1 denial of his motion for
appointment of counsel. The district court's denial of counsel is affirmed at this time,
but the denial is without prejudice to Timothy Nelson's right to renew his request for
counsel as the case progresses. In any future orders which may deny requests for
counsel, the district court is directed to state in more detail its reasons for doing so.


      1
        The Honorable Jean C. Hamilton, United States District Judge for the Eastern
District of Missouri.
See Slaughter v. City of Maplewood, 731 F.2d 587, 589 (8th Cir. 1984) (discussing
the need for the record to reveal "whether the district court exercised a reasoned and
well-informed discretion, so as to permit . . . review for abuse of discretion").

COLLOTON, Circuit Judge, dissenting.

      Timothy Nelson appeals the district court’s decision to deny his motion for
appointment of counsel in an action filed pursuant to 42 U.S.C. § 1983. I would
dismiss the appeal for lack of jurisdiction, and I therefore respectfully dissent from the
court’s decision to assert jurisdiction and to consider the merits of the appeal.

       In Flanagan v. United States, 465 U.S. 259 (1984), the Supreme Court held
unanimously that a collateral order disqualifying counsel for defendants in a criminal
case was not immediately appealable. Applying the well-established “final judgment
rule,” which “is the dominant rule in federal appellate practice,” id. at 270 (quoting
6 Moore, Federal Practice 113 (2d ed. 1953)), the Court concluded that an order
disqualifying counsel did not satisfy the three “stringent conditions for qualification
as an immediately appealable collateral order,” id. at 269 – namely, (1) that it “must
conclusively determine the disputed question,” (2) that it “must resolve an important
issue completely separate from the merits of the action,” (3) that it “be effectively
unreviewable on appeal from a final judgment.” Id. at 265 (quoting Coopers &
Lybrand v. Livesay, 437 U.S. 463, 468 (1978)). Depending on whether the asserted
right to counsel of one’s choice would require a showing of prejudice, the Court held
that the order did not meet either the second or third requirement for appealability, and
that “a straightforward application of the necessary conditions laid down in prior
cases” demonstrated that the Court lacked jurisdiction. Flanagan, 465 U.S. at 270.

       More than two decades after Flanagan, all but one court of appeals to consider
the immediate appealability of an order denying appointment of counsel in a § 1983
action has held that jurisdiction is lacking. See Marler v. Adonis Health Products, 997

                                           -2-
F.2d 1141, 1142 & nn.1 & 2 (5th Cir. 1993) (collecting cases). As Judge Merritt
wrote in a case involving one such appeal, there is “no reason to carve out an
exception to rules of appealability for civil rights cases,” because “[s]uch cases are not
more or less sacrosanct than numerous other types of federal cases for which a lawyer
may be appointed,” and “[w]hether an error has been made respecting the appointment
of counsel in civil rights cases can be corrected just as easily after final judgment as
in other cases.” Henry v. City of Detroit Manpower Dep’t, 763 F.2d 757, 764 (6th Cir.
1985) (en banc) (Merritt, J., concurring). In sum, “[t]here is no reason to distinguish
civil rights cases from habeas corpus, social security and criminal cases.” Id. In the
one outlying decision, Robbins v. Maggio, 750 F.2d 405, 410-13 (5th Cir. 1985), the
dissenting opinion of Judge Garwood is in harmony with the clear majority view, id.
at 414-18 (Garwood, J., dissenting), and the Fifth Circuit has since retreated from its
assertion in Robbins that Flanagan applies only to criminal cases. Marler, 997 F.2d
at 1143 (products liability action); Thomas v. Scott, 47 F.3d 713, 715 (5th Cir. 1995)
(habeas corpus petition).

       While the correct answer to the jurisdictional question appears clear, the
complicating factor in this appeal is our court’s decision in Slaughter v. City of
Maplewood, 731 F.2d 587 (8th Cir. 1984), which held that an order denying
appointment of counsel in a case brought under Title VII of the Civil Rights Act was
immediately appealable. Id. at 588-89. The Slaughter panel relied primarily on a
prior panel decision in Hudak v. Curators of University of Missouri, 586 F.2d 105,
106 (8th Cir. 1978), and a decision of the Ninth Circuit in Bradshaw v. Zoological
Society of San Diego, 662 F.2d 1301 (9th Cir. 1981), to support its conclusion. In a
quirk of timing, Slaughter was submitted to the panel on January 11, 1984, the
Supreme Court decided Flanagan on February 21, 1984, and Slaughter was then
decided on April 13, 1984 – without any mention of Flanagan or any indication that
the Supreme Court’s intervening decision was called to the attention of the panel.




                                           -3-
       It is well settled that a panel of the court of appeals may depart from circuit
precedent based on an intervening opinion of the Supreme Court that undermines the
prior precedent. T.L. v. United States, 443 F.3d 956, 960 (8th Cir. 2006). But what
of the situation where an intervening decision of the Supreme Court is filed while a
similar case is under submission in the court of appeals, and the Supreme Court’s new
pronouncement is unnoticed by the panel? This “unusual and delicate situation,”
Wilson v. Taylor, 658 F.2d 1021, 1035 (5th Cir. 1981), has been addressed in only
three reported opinions, and all three circuits have held that a panel of the court of
appeals may follow the overlooked decision of the Supreme Court, rather than the
prior panel decision that was filed without consideration of the Supreme Court’s
intervening opinion.

       In Wilson, the Fifth Circuit reasoned that because the intervening decision of
the Supreme Court was binding on the prior panel that was unaware of it, and the prior
panel was without power to disregard the Supreme Court opinion, a later panel of the
court should follow the decision of the Supreme Court, rather than the obsolete
reasoning of the prior panel. Id. at 1035. The Eleventh Circuit concluded that
although decisions of prior panels are binding on subsequent panels, that rule did not
apply where recent holdings of the Supreme Court were not called to the attention of
a prior panel, and where those holdings would have dictated a conclusion contrary to
the decision of the prior panel. Tucker v. Phyfer, 819 F.2d 1030, 1035 n.7 (11th Cir.
1987). The court explained that it was “not . . . violating the prior panel rule,” but
“simply discharging [its] duty to follow clearly controlling Supreme Court precedent.”
Id.2 The Federal Circuit reached the same conclusion, holding succinctly that “[a]


      2
        A subsequent panel of the Eleventh Circuit disagreed with Tucker, although
the later decision did not involve a clearly controlling Supreme Court precedent that
had been unnoticed by a prior panel. Smith v. GTE Corp., 236 F.3d 1292, 1303 (11th
Cir. 2001). The Smith panel asserted that Tucker did not survive a subsequent en banc
opinion that reiterated the prior panel rule, id., but of course Tucker recognized the
prior panel rule and found it inapplicable, 819 F.2d at 1035 n.7, so it is unclear how

                                         -4-
decision that fails to consider Supreme Court precedent does not control if the court
determines that the prior panel would have reached a different conclusion if it had
considered controlling precedent.” Atlantic Thermoplastics Co., Inc. v. Faytex Corp.,
970 F.2d 834, 838 n.2 (Fed. Cir. 1992).3 Following the lead of our three sister
circuits, we would be free to consider the Supreme Court’s decision in Flanagan
anew, and that consideration would lead ineluctably to the conclusion that this appeal
should be dismissed for lack of jurisdiction.

       Whatever the precedential force of the holding of Slaughter, I am quite
confident that we are not bound by its dicta. Slaughter held only that the court has
jurisdiction over an appeal from denial of counsel in a Title VII case. To the extent
we are obligated to follow that holding even though the panel did not consider
Flanagan, we should limit our deviation from the Supreme Court’s guidance to the
minimum. The Ninth Circuit, whose decision concerning appealability in a Title VII
case was followed by Slaughter, 731 F.2d at 589 (quoting Bradshaw, 662 F.2d at
1310-11), has subsequently held that an order denying counsel is not immediately
appealable in a § 1983 suit. Wilborn v. Escalderon, 789 F.2d 1328, 1330 & n.2 (9th
Cir. 1986) (distinguishing Bradshaw). The better view is that we lack jurisdiction in
either type of action. E.g., Hodges v. Department of Corrections, 895 F.2d 1360,
1362 (11th Cir. 1990) (per curiam). But if we are bound to follow Slaughter in a Title
VII case, then we should not compound the error by extending our assertion of
jurisdiction to an immediate appeal regarding appointment of counsel in a § 1983
case.




a future panel of the Eleventh Circuit would proceed in this situation.
      3
       The D.C. Circuit noted this issue in Amfac Resorts, L.L.C. v. United States
Dep’t of the Interior, 282 F.3d 818, 827 (D.C. Cir. 2002), but found it unnecessary to
resolve it.

                                         -5-
      I would dismiss this appeal for lack of jurisdiction. Because the panel
concludes that Slaughter dictates that the court assume jurisdiction, I respectfully
suggest that the question warrants review by the en banc court in this case or a future
similar appeal, so that we may bring the law of the circuit into line with decisions of
the Supreme Court and our sister circuits.
                        ______________________________




                                         -6-
