from the United States District Court for the Eastern
District of Texas
OWEN, Chief Judge, JONES, SMITH, STEWART, DENNIS, ELROD,
SOUTHWICK, HAYNES, GRAVES, HIGGINSON, COSTA, WILLETT, HO,
DUNCAN, ENGELHARDT, and OLDHAM, Circuit Judges.
E. SMITH, Circuit Judge
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 in
Robbins v. Maggio, 750 F.2d 405 (5th Cir. 1985), is
overruled. This appeal is dismissed for want of jurisdiction.
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 requirements
for appointment of counsel in § 1983
brief, the state acknowledged that any panel would be bound,
per the rule of orderliness, to recognize appellate
jurisdiction under Robbins. 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 briefing
and oral argument on Williams's behalf.
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)." 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  conclusively determine the
disputed question,  resolve an important issue completely
separate from the merits of the action, and  be
effectively unreviewable on appeal from a final
judgment." Coopers & Lybrand v. Livesay,
437 U.S. 463, 468 (1978).
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.
was error that we now correct. In vigorous dissent in
Robbins, Judge Garwood pointed out that
[a] party capable of perfecting pro se an appeal
from an order denying 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
demonstrate 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).
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,  the fact "that a ruling
'may burden litigants in ways that are only imperfectly
reparable 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.