Lead Opinion
William Devine (“Devine”), a non-lawyer, seeks to discharge his family’s attorney and represent the interests of his child, John, in a lawsuit pursuant to the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (“IDEA”).
I.
During the 1992-93 school year, the Devine family, including their autistic son John, resided within the Indian River County school district. Agreeing that John is a disabled child within the meaning of IDEA, entitled to a free, appropriate public education, the parties sought to craft an individualized education program (“IEP”) for the
Thereafter, the Devines commenced the instant action in the district court, seeking: (1) attorney’s fees and costs as prevailing parties in the administrative proceeding;
At the beginning of the day on February 21, Blackmore informed the court that Devine wished to discharge him as the family’s attorney and to proceed with the trial unaided. Devine discussed the matter with the court, which then denied the motion. Trial proceeded until February 24, on which date the court recessed the trial to recommence July 27. Until this point, Devine apparently remained satisfied with Blackmore’s performance.
II.
As a threshold matter, we consider whether we have jurisdiction over a non-final order allegedly infiingmg a party’s right to appear pro se.
The majority of courts to address this question have found that jurisdiction is proper. Compare Reshard v. Britt,
Precedent aside, we conclude that the order in the instant case fits neatly within the scope of the collateral order exception. First, the district court’s order finally concluded the question of Devine’s pro se appearance; it required Devine to appear through Blackmore or to retain appropriate alternate counsel
Second, the validity of the district court’s order is separate from the merits of the underlying claim. Devine argues that he has a right to represent his son in federal court under 28 U.S.C. § 1654, Fed.R.Civ.P. 17(c), and IDEA. Thus, assessing the propriety of this interlocutory issue will turn on our interpretation of those statutes and rules. See, e.g., DeSisto College, Inc. v. Line,
The third prong of the Cohen analysis— that the order appealed from be effectively unreviewable after final judgment — gives us the most pause. Specifically, because the Supreme Court has limited interlocutory appeals of orders regarding representation, we question whether the instant appeal is untimely. In a trilogy of cases, the Court refused to permit immediate appeals of various orders involving disqualification of trial counsel. See Firestone Tire & Rubber Co. v. Risjord,
We conclude that the foregoing analysis is inapplicable to orders denying a party the right to proceed pro se. Although we recognize that a trial court’s order requiring counsel is in part remediable after final judgment, given our “usual authority to vacate the judgment appealed from and order a new trial,” Firestone,
An order denying self-representation is analogous to other orders courts have found immediately appealable. Specifically, orders denying a litigant leave to proceed in forma pauperis or denying intervention as of right fit within the collateral order exception. Roberts v. United States Dist. Court for the N. Dist. of Cal.,
In light of the foregoing, we conclude that the district court’s order is effectively unreviewable on appeal from final judgment and, therefore, we have jurisdiction over this appeal.
III.
Turning to the merits of this appeal, we first conclude that neither 28 U.S.C. § 1654 nor Fed.R.Civ.P 17(c), cited by Devine, permits a parent to represent his/her child in federal court. Section 1654 authorizes parties in federal cases to “plead and conduct their own cases personally or by counsel,” but is inapposite because it does not speak to the issue before us — -whether Devine may plead or conduct his son’s case.
We also cannot agree with the argument that IDEA compels a contrary result in this ease. First, Devine cites two cases, Mountain View — Los Altos Union High Sch. Dist. v. Sharron B.H.,
Devine’s second IDEA claim is that the statute and regulations promulgated
IV.
Accordingly, the order of the district court denying Devine’s motion to represent his son is AFFIRMED.
Notes
. On June 4, 1997, President Clinton signed the Individuals with Disabilities Education Act Amendments of 1997. Its provisions do not affect the disposition of this case.
. John previously had been placed at the May Institute. The Devines lived in Massachusetts until moving to Florida in the fall of 1988.
. See 20 U.S.C. § 1415(e)(4)(B). The record indicates that the Devines retained Robert Black-more as their attorney for purposes of evaluating the hearing officer's proposed final order.
. The Devines moved to Massachusetts following the 1992-93 school year, and Massachusetts state and local school entities presently are paying for John's placement at the May Institute. Devine represented at oral argument that he wishes to return to Florida, and have local instrumentalities in Florida assume the cost of paying for John’s placement.
. In his brief, Devine states that "Blackmore did not adequately represent the interests of the Devines,” citing Blackmore’s failure to appear at a pretrial hearing and deficient performance at other unidentified hearings. Devine's February 21 colloquy with the district court, however, belies this claim and suggests that financial considerations motivated the request to proceed pro se.
. As is evident from section III, infra, we do not believe that Devine may proceed pro se on his son’s behalf. The nature of the jurisdictional inquiry, however, requires us to assume for present purposes that he can. We note that Devine does not challenge the district court's order as it applies to his representation of his wife and himself. Thus, we think the order is best characterized — in order to assess jurisdiction — as one denying a motion to proceed pro se on John's behalf.
. Although a motions panel of this court denied the school board's motion to dismiss the appeal for lack of jurisdiction, we may revisit that determination. See 11th Cir. R. 27-1 (f).
. Our court has recognized that three exceptions to the finality requirement exist: (1) the collateral order doctrine; (2) the doctrine of practical finality; and (3) the exception for intermediate resolution of issues fundamental to the merits of the case. In re: F.D.R. Hickory House, Inc.,
. Our Reshard case was vacated so that the merits of the panel’s decision could be reconsidered en banc. See
. The order states: "The complexity of this action demands that Plaintiffs be represented by counsel. Therefore, counsel will be permitted to withdraw only where substitute counsel is named in the motion.” Order of June 24, 1995.
. The order is therefore distinguishable from orders that do not reject conclusively a party’s claimed right. For instance, in Holt v. Ford,
. Unlike the request for appointed counsel at issue in Holt, the right to proceed pro se does not depend on the factual or legal complexity of the case.
. For instance, in Flanagan,
[I]f establishing a violation of [petitioners'] asserted right requires no showing of prejudice to their defense, a pretrial order violating the right does not meet the third condition for coverage by the collateral order exception: it is not "effectively unreviewable on appeal from a final judgment.”
If, on the other hand, petitioners’ asserted right is one that is not violated absent some specifically demonstrated prejudice to the defense ... the second Coopers & Lybrand condition — that the order be truly collateral — is not satisfied.... Its validity cannot be adequately reviewed until trial is complete.
.Although McKaskle involved a criminal defendant’s constitutional right of self-representation, "the right to proceed pro se under 28 U.S.C. § 1654[ ] is a fundamental statutory right that is afforded the highest degree of protection. It is a right which is deeply rooted in our constitutional heritage, and although statutory in origin, ‘[fits constitutional aura is underscored by the proposal the very next day of the Sixth Amendment,’ to the U.S. Constitution.” Reshard,
. But see Flanagan,
. Thus, an order denying pro se status is distinguishable from one denying an in forma pauperis § 1983 or Title VII litigant appointed counsel, which we have held to be unappealable under Cohen. Holt v. Ford,
. We note that Devine is also a plaintiff in this matter. Thus, section 1654 permits him to prosecute his own case in district court without benefit of counsel, in appropriate circumstances. See Cross v. United States,
.The published cases under IDEA (and its precursor, the Education for All Handicapped Children Act) involving pro se representation by parents are distinguishable from the present case because they involved parents who were attorneys. Kattan by Thomas v. District of Columbia,
. For instance, we note that the school board in this case moved the district court to dismiss the Devines’ action on abstention grounds. The Devines, through counsel, responded and succeeded in avoiding dismissal. A non-lawyer parent, though perhaps the most competent person to present evidence relevant to his/her child’s disability at a due process hearing, would be ill-equipped to contest a motion based on such a difficult issue.
Dissenting Opinion
dissenting:
I respectfully dissent from the majority’s conclusion that we have jurisdiction over an interlocutory order denying a party leave to represent his child pro se. I agree with the majority that we may not review such an order pursuant to the statutory provisions of 28 U.S.C. § 1291 or 28 U.S.C. § 1292(a) or (b). However, I cannot agree that the collateral order exception confers jurisdiction upon us in this case.
As the majority notes, the collateral order doctrine is a narrow exception to the finality requirement of 28 U.S.C. § 1291. Cohen v. Beneficial Indus. Loan Corp.,
In order to satisfy the third prong of the collateral order doctrine, an appellant must demonstrate that “denial of immediate review would render impossible any review whatsoever.” Firestone Tire & Rubber Co. v. Risjord,
In Firestone, the Court held that an order denying a motion to disqualify opposing counsel in a civil ease was not subject to interlocutory appeal because it was reviewable upon a final judgment in the underlying litigation. Firestone,
In Flanagan, the Court held that an order disqualifying a criminal defendant’s counsel was not immediately appealable under the collateral order doctrine.
Petitioners correctly concede that post-conviction review of a disqualification order is fully effective to the extent that the asserted right to counsel of one’s choice is like, for example, the Sixth Amendment right to represent oneself. Obtaining reversal for violation of such a right does not require a showing of prejudice to the defense, since the right reflects constitutional protection of the defendant’s free choice independent of concern for the objective fairness of the proceeding.... In sum, as petitioners concede, if estabhshing a violation of their asserted right requires no showing of prejudice to their defense, a pretrial order violating the right does not meet the third condition for coverage by the collateral-order exception: it is not “effectively unreviewable on appeal from a final judgment.” (Id. at 267-68,104 S.Ct. at 1056 (internal citations omitted).)
Alternatively, the Court noted that if a specific showing of prejudice were required to demonstrate a violation of petitioners’ asserted rights, the challenged order would fail the second prong of the collateral order doctrine test — separability from the merits of the ease. Id. at 268-69,
Finally, in Richardson-Merrell, the Court held that an order disqualifying counsel in a civil case was not subject to interlocutory appeal under the collateral order doctrine. Richardson-Merrell,
Reviewing those Supreme Court precedents, it seems clear that an order denying a party leave to proceed pro se does not fall within the narrow class of rulings which are immediately appealable under the collateral order doctrine.
Although the right to proceed pro se in the civil context is statutory, rather than constitutional as is the Sixth Amendment right discussed in Flanagan, the same interests would be harmed by an erroneous order denying a party leave to proceed pro se.
Furthermore, the autonomy interest in proceeding pro se identified by the majority is particularly weak — indeed, if present at all — in this case because, as noted, appellant William Devine is not requesting the right just to represent himself, but is seeking to represent his son pro se. The majority rather uniquely assumes for the purposes of its jurisdictional analysis that Devine has such a right. However, that assumption is inappropriate because the autonomy interest — which the majority asserts makes the challenged order unreviewable upon final appeal and catapults it into the narrow confines of the collateral order exception — clearly depends upon whether appellant Devine has any right to represent his son pro se. A party unquestionably has a right to appear pro se in his own case, but has no right to appear in effect as an attorney on the behalf of someone else. C.E. Pope Equity Trust,
The majority next takes the position that the denial of the motion of William Devine to proceed pro se affects an interest separate from the dignity and autonomy interest identified above, namely, an interest in access to the judicial system. The majority equates an order denying leave to proceed pro se with orders denying leave to proceed in forma pauperis and denying intervention as of right — both of which are subject to interlocutory appeal — because each of the three supposedly “closes the courthouse door” to non-prevailing litigants. See Roberts v. United States Dist. Court for the N. Dist. of Cal.,
In sum, I believe that an order denying the right to proceed pro se does not fall within the collateral order exception because it fails the third prong of the Coopers & Lybrand test, which requires that the order immediately destroy a fundamental right which cannot be rectified upon review of a final judgment. Supreme Court precedent in the analogous area of orders affecting litigants’ autonomy interests in choosing their own counsel dictate that such orders do not satisfy the Coopers & Lybrand test. There is no reason why the same conclusion should not be reached i-egarding the autonomy interest in self-representation which would be affected by the denial of leave to proceed pro se. Moreover, here the petitioning party has no autonomy interest at stake since he does not seek the right to represent himself, but rather a third person, albeit his son. Finally, there is no merit to the argument that the denial of leave to proceed pro se destroys the petitioning party’s interest in access to the judicial system since such an order does not necessarily preclude the acquisition of representation through other means. Accordingly, I conclude that an order denying leave to proceed pro se is reviewable upon review of a final judgment and that the collateral order doctrine does not apply. Hence, I respectfully dissent, believing that we should dismiss this case for lack of jurisdiction.
. In Flanagan, the Supreme Court stated:
The final judgment rule serves several important interests. It helps preserve the respect due trial judges by minimizing appellate-court interference with the numerous decisions they must make in the pre-judgment stages of litigation. It reduces the ability of litigants to harass opponents and to clog the courts through a succession of costly and time-consuming appeals. It is crucial to the efficient administration of justice. (Id. at 263-64,104 S.Ct. at 1054 .)
. The Court of Appeals had taken the position that Flanagan strictly applied the final judgment rule and very narrowly applied the collateral order exception because of the criminal nature of the case. Concluding that the Flanagan Court’s focus in denying interlocutory appellate jurisdiction had been on the potential for delay inherent in the grant of an inlerlocutoiy appeal, the lower court noted that delay is a much more severe problem in the criminal context than in the civil context. Rejecting this attempt to distinguish Flanagan, the Richardson-Merrell Court stated that "[ajllhough delay is anathema in criminal cases, it is also undesirable in civil disputes, as the Court of Appeals itself recognized. One purpose of the final judgment rule embodied in § 1291 is to avoid the delay that inherently accompanies time-consuming interlocutory appeals."
. The majority cites three circuit cases in support of its conclusion that an order of the type at issue is immediately appealable. Reshard v. Britt,
Reshard, on which the majority essentially bases its analysis, was vacated by the en banc court and therefore is not binding. C.E. Pope Equity Trust simply concludes without discussion that an order denying a petitioner the right to proceed pro se fits within the collateral order doctrine and is immediately appealable. Id. at 697. Primarily, O’Reilly based its holding of immediate appealability on the difficulty which an appellant would have in demonstrating that prejudice resulted from an erroneous order upon review of a final judgment. O'Reilly,
. It should be borne in mind that there is more than a little artificiality here, in that the crux of this case is Devine's desire to dismiss retained counsel and represent his own son.
. I recognize that this is somewhat of a contradiction of terms, but that is how it is dealt with by the majority.
. The persuasive nature of these cases in the pro se context is severely limited. First, both opinions were written long before the currently controlling three-prong lest was established by Coopers & Lybrand. Brotherhood of R.R. Trainmen was decided prior to Cohen, which formally established the collateral order exception, and Roberts was decided only a year after Cohen. It also should be noted that the district court in Brotherhood of R.R. Trainmen “allowed an appeal ... from its order denying intervention,” an action which suggests a somewhat different basis of appellate authority than that which would later become the collateral order doctrine. Brotherhood of R.R. Trainmen,
In contrast, the Supreme Court precedent relied on in this dissent details its application of the Coopers & Lybrand test. These later opinions emphasize the importance of the final judgment rule and the consequent narrowness of the collateral order doctrine. The same concerns regarding judicial economy, the independence of the trial court, and delay which compelled the Court to reject the expansion of the collateral order doctrine to include interlocutory appeal of disqualification orders assuredly are relevant in the pro se context.
. Assuming arguendo that the majority is correct in its jurisdictional analysis, I would concur in Part III of the majority opinion, affirming the trial court’s order.