Devine Ex Rel. Devine v. Indian River County School Board

Terry Devine, DEVINE, John William J.

Devine, through a minor his nat parents

ural Devine and Ter William J.

ry Devine, Plaintiffs-Counter-Defen

dants-Appellants,

INDIAN RIVER COUNTY SCHOOL

BOARD, Defendant-Counter-

Claimant-Appellee. 95-4847.

No. Appeals,

United Court of States

Eleventh Circuit.

Sept. Devine, MA, Westport, J. Pro se.

William FL, Bowen, Largo, John W. for Defen- dant-Counter-Claimant-Appellee. BARKETT, Judge, Before Circuit KRAVITCH, Judge, Senior Circuit *, Judge. HARRIS Senior District KRAVITCH, Judge: Senior Circuit (“Devine”), non-lawyer, William Devine family’s attorney discharge his seeks child, John, in a represent the interests of his pursuant with Dis- lawsuit Individuals Act, 1400 et Education 20 U.S.C. abilities (“IDEA”).1 The district court denied seq. “Emergency Motion to Allow With- Devine’s Attorneys Appear- and Pro Se drawal ance,” day of trial. We filed on the second affirm.

I. year, De- During the school 1992-93 John, family, including their autistic son vine County within the Indian River resided that John is a dis- Agreeing district. school IDEA, meaning of child within the abled free, appropriate public edu- entitled cation, parties sought to craft an individ- (“IEP”) program for the ualized education * Harris, signed the Stanley June President Clinton S. U.S. District 1. On Honorable Senior Columbia, Act with Disabilities Education sitting by Individuals Judge for the District provisions not af- Its do Amendments designation. disposition case. of this fect year. dispute

school A arose as a result of counsel accordance with the district court’s required Devine’s belief that John more than order. daytime schooling Dodger- he received at At beginning day February Elementary urged town School. Devine 21, Blackmore informed the court that De- place- school board to furnish a residential discharge family’s vine wished to him as the John, preferably May ment at for Insti- attorney proceed and to with the trial unaid- tute in Massachusetts.2 The Indian River ed. Devine discussed the matter with the County placement school board denied such court, which then denied the motion. Trial requested process and the Devines due proceeded February until on which date 1415(b)(2), § hearing, see 20 U.S.C. to chal- the court recessed the trial to recommence lenge IEP grounds. the board’s on several July point, 27. apparently Until this Devine hearing, represented At the Devine his fami- remained perfor- satisfied with Blackmore’s ly by examining presenting witnesses and 7, however, mance.6 On June Devine moved hearing evidence. The officer concluded that the district court to allow Blackmore to with- insufficient, IEP ignored was as it John’s se, draw and to allow Devine to hours, developmental after difficulties school citing undisclosed differences. The court de- placement but also ruled that a residential nied timely the motion and Devine filed a unnecessary. appeal. notice of Thereafter, the Devines commenced the II. court,

instant action in the seeking: district (1) attorney’s prevailing matter, fees and costs as As a threshold we consider parties in proceeding;3 the administrative jurisdiction whether we have over a non-final (2) compensatory damages expenses for in- allegedly infiingmg party’s right allegedly appear pro curred as result of the deficient se.5 challenged order does (3) IEP; IDEA; eligibility extended finally ease, not resolve the merits of the (4) (5) general damages; prospective and authorizing re- our review under 28 U.S.C. ordering placement § lief residential nor is it one of the kinds of interlocu May Institute.4 From complaint tory their initial orders from appeal may which an be October, trial, day 1292(a). 1993 until the pursuant second § taken to 28 U.S.C. Fur February repre- ther, the Devines were the district certify court did not sented counsel. For proceed- most of the presenting order as “a controlling question of ings, Oregon Robert Blackmore of served as law as to which there ground substantial attorney, having Devines’ been opinion,” admitted for a difference of permitting appel pro having 1292(b).7 hoc vice and associated with local late review under 28 U.S.C. previously placed May court, however, 2. John colloquy had been at the with the district be- Institute. The Devines lived in Massachusetts suggests lies this claim and that financial consid- moving until to Florida in the fall of 1988. proceed erations request motivated the 1415(e)(4)(B). 3. See 20 U.S.C. The record in- III, infra, 6. As is evident from section we do not dicates that the Devines retained Robert Black- may proceed pro believe that Devine se on his attorney purposes evaluating more as their for son’s jurisdictional behalf. The nature hearing proposed officer's final order. however, inquiry, requires pres- us to assume for 4. following The Devines moved to Massachusetts purposes ent that he can. We note that Devine year, the 1992-93 school and Massachusetts state challenge does not the district court's order as it presently paying local school entities are for applies representation to his of his wife and placement May John's represented at the Institute. Devine Thus, himself. we think the order is best charac- argument at oral that he wishes to jurisdiction terized—in order to assess one—as Florida, return and have local instrumentali- denying proceed a motion to se on John's paying ties in Florida assume the cost of for behalf. placement. John’s Although panel brief, a motions of this court denied In his Devine states "Blackmore did the school adequately represent board's motion to not dismiss the the interests of the De- vines,” citing jurisdiction, may Blackmore’s failure lack of at a revisit that deter- pretrial hearing (f). performance and deficient mination. See 11th Cir. R. 27-1 hearings. other February unidentified Devine's (holds Cir.1982) (2d jurisdiction only ex F.2d Interlocutory ists, then, discharge request order fits within challenged if the of counsel exception to sec immediately appealable) collateral order with Flora the narrow finality requirement. Cohen v. tion 1291’s Ins. Constr. Co. v. Fireman’s Fund Corp., Cir.1962) (without Indus. discussion, Loan Beneficial (1949).8 To 93 L.Ed. motion holds order Cohen, must “con a non-final immediately ap- corporation on behalf of disputed question, clusively determine denied, pealable), cert. completely sepa important issue resolve (1963). 505, 9 L.Ed.2d action, the merits of the rate from aside, the or- Precedent we conclude from a effectively unreviewable on neatly case fits the der the instant within Lybrand Coopers & v. Li final exception. scope of the collateral order 463, 2458, 468, 2454, vesay, U.S. 437 First, finally court’s con- the district order (1978). conclude that we 57 L.Ed.2d 351 We ap- question cluded of Devine’s the deny jurisdiction non-final orders have over pearance; required it Devine status. ing pro se through appropriate or to retain Blackmore majority of to address this The courts suggest and did not that alternate counsel10 jurisdiction prop- question have found that is be able over the might Devine later to take Britt, Compare v. 819 F.2d er. Reshard case himself.11 Cir.) (holds (11th person- 1573 Second, validity the of the district court’s represent- al of estate from representatives separate is from merits of immediately appealable), pro se ing estate has argues Devine that he underlying claim. (11th Cir.1987), vacated, F.2d 222 831 affirm- court represent his son in federal court, by equally divided ing district court 17(c), 1654, § 28 U.S.C. Fed.R.Civ.P. (11th Cir.1988) (en banc);9 1499 839 F.2d Thus, of assessing propriety and IDEA. States, Pope Equity Trust v. United 818 C.E. our inter- interlocutory issue will turn on (9th Cir.1987) (without discussion, this 696 F.2d See, rules. pretation those statutes and of pro se striking plead- trustee’s holds order Line, Inc. F.2d e.g., College, v. 888 immediately appeal- DeSisto behalf of trust ings on Cir.1989) (11th Times, 755, challenging able) (appeal O’Reilly 763 v. New York 692 senting) (noting exceptions reason for en banc consider- recognized 8. that three Our court has merits, ation). (1) court could finality requirement On the en banc exist: collater- decision, doctrine; resulting (2) in the practical of not reach a the doctrine al order law, being by operation (3) affirmed district court finality; exception for intermediate binding precedent on leaving circuit to the merits of of issues fundamental resolution House, procedural Inc., point. posture of Reshard Given the Hickory In re: the case. F.D.R. however, opin- reasoning, persuasive 724, (11th Cir.1995). and its Upon consider- F.3d ation, analysis. ion much of our informs persuaded only that we are first appeal. arguably to the instant is relevant these Forgay- practical finality, or the The doctrine ac- complexity "The of this 10. states: rule, involving property applies in cases Conrad contests, represented tion demands that Plaintiffs 726, (first Therefore, id. at and the final permitted to counsel will be counsel. Gillespie v. United States Steel articulated only named where substitute counsel is withdraw 308, Corp., 13 L.Ed.2d 199 in the Order June motion.” (1964)), given been narrow construction. Lybrand Livesay, Coopers v. See distinguishable from therefore 11. The order is 2462 n. 57 L.Ed.2d 477 n. party’s reject conclusively a orders that do not (1978) Gillespie permitting (describing as instance, Ford, 862 right. For in Holt claimed sig- jurisdiction over "unsettled issue national Cir.1989) (en banc), (11th we found an F.2d 850 jurisdictional problem only when nificance” indigent denying appointed counsel to litigation; holds "[i]f late in the identified rejection of a plaintiff was not unique beyond Gillespie facts were extended court could right because the district claimed case, stripped all 1291 would be proved litigation decision if the reconsider its significance.”). anticipated. By initially than be more involved contrast, proceeds a conclusion a case toward counsel, unlikely will is that a court case vacated so the mer- with it Our Reshard party interrupt proceedings to panel’s let could be reconsidered its of the decision J., (Tjoflat, at 1500 dis- en banc. See himself/herself. (1985) (order separable sanctions under Fed.R.Civ.P. is L.Ed.2d 340 granting motion to claim), underlying rights case). merits civil disqualify opposing counsel civil denied, 952, 110 2219, 109 cert. suggest These decisions representation- (1990); L.Ed.2d 544 Rives v. Franklin fully related orders are either reviewable on Life (5th Cir.1986) Ins. 792 F.2d appeal, thereby violating the unreviewa- (appeal challenging disqualification of trustee Cohen, bility prong subject or are to re- requires interpretation of state statute re- error, prejudicial view for requiring thus garding separable trustees and is from mer- appellate investigate court to the merits of underlying dispute). its of insurance Conse- underlying dispute, in violation of Co- quently, immediate review will not involve us hen separability requirement.13 ’s lawsuit, subject namely, matter of the wrongly whether appropri- John was denied We foregoing conclude that ate educational services. Holt v. analysis inapplicable Ford Cf. Cir.1989) (en banc) 862 F.2d Although (order denying appointed counsel in recognize requir a trial court’s order informa pauperis rights separable civil action not be- ing part counsel is in remediable after final appoint requires cause decision to counsel judgment, given authority our “usual to va legal consideration of complexity and factual judgment appealed cate the from and order a merits).12 of case on the trial,” Firestone, 378, new 449 U.S. at 101 675, S.Ct. we right believe that analysis— third of the Cohen effectively one’s self is lost if not appealed that effectively the order from be immediately vindicated. The harm in erro judgment gives unreviewable after final us — neously denying party a proceed pro leave to pause. Specifically, the most because the injures se is it dignity and auton Supreme his/her interlocutory ap- Court has limited omy, repaired and this harm cannot be after peals regarding representation, of orders we a on the merits. See McKaskle v. question appeal whether the instant is un- Wiggins, 944, 465 cases, U.S. 104 timely. In a S.Ct. trilogy of the Court 951, (1984) (“The 79 L.Ed.2d 122 permit appeals refused to defendant’s immediate of vari- appearance in the ous status of one involving disqualification conducting orders of trial his own important defense is counsel. See in a Firestone Tire & Rubber v. criminal Co. trial, Risjord, 368, 669, right 449 since the U.S. 66 exists (1981) (order to affirm L.Ed.2d 571 dignity motion to accused’s individual Moreover, disqualify opposing case); autonomy.”).14 counsel in civil this harm exists States, Flanagan 259, quite apart any prejudice v. United 465 from party might U.S. 104 a 1051, (1984) (order 79 incur trying L.Ed.2d 288 from case with an un his/her granting disqualify is, motion to attorney; defense counsel wanted the affront to a case); Richardson-Merrell, in litigant’s criminal right Inc. to conduct the case would Roller, 424, 2757, v. 472 persist 105 86 granted even the were a new request appointed 12. Unlike specifically for counsel at prejudice demonstrated to the de- Holt, right issue in se does not Coopers Lybrand fense ... the second condi- depend legal complexity on the truly factual or tion—that the order be collateral—is not case. validity satisfied.... adequately Its cannot be complete. reviewed until trial is instance, 268, Flanagan, 13. For 465 U.S. at 14.Although McKaskle involved a criminal defen- 104 S.Ct. at the Court staled: right self-representation, dant’s constitutional of establishing [petitioners'] [I]f as- violation right "the se under 28 U.S.C. right requires showing prejudice serted statutory right 1654[ ] is a fundamental defense, pretrial violating to their highest degree protection. is afforded It is right does not meet the third condition for right deeply which is rooted in our constitu- coverage by exception: it heritage, although statutory origin, tional "effectively is not unreviewable on from ‘[fits constitutional aura is underscored a final proposal ment,’ very day next of the Sixth Amend- Reshard, to the U.S. Constitution.” 819 If, hand, petitioners’ on the other asserted (quoting Dougherty, F.2d at 1579 United v. States (D.C.Cir.1972)). is one that is not violated absent some 473 F.2d speak to before denial of the issue us—-whether of an erroneous trial because may plead or conduct his son’s case.17 Devine status.15 17(c) Likewise, permits Rule unavailing; is it denying self-representation An order representatives, par- including authorized have analogous to other orders courts is minors, ents, to sue on does not behalf appealable. Specifically, immediately found representatives any right upon such confer denying litigant leave orders See, e.g., legal serve counsel. Osei-Afri as of pauperis or intervention forma Penn., yie College v. Medical F.2d exception. fit within collateral (3d 1991) (neither Cir. 882-83 section Dist. v. United Roberts States 17(c) permits non-lawyer parent to nor Rule Cal., 844, 845, 70 S.Ct. N. Dist. court); Cheung represent child in federal v. (1950); Brotherhood 94 L.Ed. 1326 Found, Inc., Buffalo, Youth Orchestra Baltimore R.R. Trainmen v. & O.R. (2d Cir.1990) (same); F.2d Meeker 519, 524-25, (10th Cir.1986) Kercher, 153, 154 782 F.2d (1947). Each these L.Ed. (same). to liti effectively closes the courthouse door Similarly, prohibiting par gants. argu an order agree We also cannot with the practically bar ty appearing pro se will compels contrary from that IDEA result ment cases, litigants prosecuting First, from their indigent Devine two this ease. cites Reshard, 819 F.2d at 1580. High cases.16 See Altos Sch. Mountain View—Los Union B.H., 709 F.2d Cir. Dist. v. Sharron light foregoing, conclude Ambach, 1983), Malle v. and Vander effectively unre- court’s order the district (2d Cir.1982), proposition for the and, final judgment viewable bring parents IDEA accords therefore, ap- jurisdiction this have over on behalf of their disabled children. actions peal. irrel agree proposition, with the but it is We 17(c), present inquiry; to the like Rule evant III. parents IDEA allows to sue in their chil ap Turning to the merits of this stead, to but not authorize them dren’s does peal, we first conclude neither 28 U.S.C. a are act as counsel in such lawsuit. We 17(c), by § De nor Fed.R.Civ.P cited 1654 authority permitting non-lawyers aware of vine, represent permits a to parent his/her pro represent children se in cases to their in federal court. Section 1654 autho child brought pursuant to IDEA.18 parties “plead in cases to rizes federal IDEA by claim is personally their own cases or Devine’s second conduct counsel,” regulations promulgated inapposite it the statute but because does (llth Cir.)(dicta) (denial hour” re Flanagan, 104 of "eleventh see 465 U.S. 15. But (dicta) (implying non-appeala- proceed may appropriate), cert. quest pro se be at 1055-56 to S.Ct. 138, denied, 849, self-repre- L.Ed.2d 498 U.S. 111 S.Ct. 112 bility denial of to of erroneous case). (1990); O’Reilly York 692 in v. New Times sentation criminal 105 863, (2d Cir.1982) (request proceed to F.2d 867 timely, criminal pro must be whether made in se Thus, denying pro se status is distin- order case). or civil denying pauperis guishable from an in one forma counsel, appointed litigant § Title 1983 or VII unappealable (and pre we have to be published which held under IDEA its 18.The cases Ford, (11th cursor, F.2d Cir. Handicapped Holt v. 862 850 Cohen. All Chil Education (en banc); 1989) Hodges Department Act) representation by par v. Correc involving pro se dren tions, (11th 1990). Cir. An indi- present 895 1360 distinguishable from case are ents aggrieved by gent party the former cannot order they parents attor who were because involved case, by Columbia, one advance harmed by neys. his/her v. Kattan Thomas District of (by appearing pro 274, can latter order (D.C.Cir.1993)(lawyer-father 995 F.2d 275 se). denied, action), family pro represented se cert. 1398, 1018, 71 128 L.Ed.2d plaintiff 511 (1994); 114 this We note that Devine is also 609, Vance, Thus, F.Supp. Rappaport 812 v. permits pros 1654 him to matter. section dismissed, (same), (D.Md.1993) appeal court without bene ecute his own case in district Keene, 1994); counsel, Ahem Cir. v. appropriate See F.3d 596 circumstances. fit (same). (D.Del.1984) States, F.Supp. n. 10 904 n. 1 v. United 893 F.2d Cross representa- parental appropriate. authorize from Flanagan thereunder it are v. United parents States, 259, 265, Although it is true that have tion. 465 U.S. (1984) (“The present to and examine impor- evidence 79 L.Ed.2d 288 process hearings pur- in due held

witnesses tance of the final led the rule has IDEA, 1415(d)(2); to permit suant see U.S.C. departures Court to from the rule 303.422(b)(2), is no there indica- ‘only C.F.R. practically when observance of it would ” Congress carry (inter- tion intended this any defeat the review at all.’ omitted)).1 proceed- requirement over federal court nal In within citation order to fit intent, In of such we are ings. the absence confines of the strict par- rule—-that compelled doctrine, follow the usual “conclusively non-final order must attorneys may bring who are not disputed ents question, determine resolve an action on their child’s behalf —because important completely separate issue from the helps rightfully action, it to ensure that children effectively merits of the and be unre- deprived legal relief are not entitled viewable on from final unskilled, day caring, their court Coopers Lybrand Livesay, & v. parents.19 2454, 2458, L.Ed.2d (1978) (internal omitted). citations An order

IV. party’s denying motion to of his behalf child fails to meet the third Accordingly, district the order of the court test, i.e., Coopers Lybrand element of represent Devine’s motion his son effectively the order unreviewable on is AFFIRMED. judgment. a final HARRIS, Judge, Senior District third dissenting: doctrine, appellant must collateral respectfully majority’s I dissent from the demonstrate “denial of re- immediate jurisdiction conclusion that we over an have impossible any view would render review interlocutory leave to whatsoever.” Firestone Tire & Rubber Co. agree his child I with the Risjord, may that we not review such an (1981) (internal 66 L.Ed.2d citation pursuant provisions statutory to the of omitted). requirement This is met where 1292(a) § 28 U.S.C. or 28 U.S.C. or practical legal “the and value of [the asserted (b). However, agree I cannot the collat- right] destroyed would be if it not were exception jurisdiction upon order eral confers 377,101 trial.” vindicated before Id. at S.Ct. us in this case. (internal omitted). at citation Unless notes, the “represents] rejection

As order final of a finality is a doctrine narrow to the claim of a fundamental that cannot requirement effectively of 28 v. be following judgment U.S.C. 1291. Cohen reviewed merits,” Corp., Indus. Loan 337 U.S. on the Court the has concluded that Beneficial (1949). fall S.Ct. L.Ed. 1528 The it does not within the small of cases class Supreme impor- emphasized Court has the which the requirement meet third the Id., judgment tance of the final rule and the collateral order doctrine. at consequent rarity departures with which S.Ct. at 675. instance, judgment For note that the school board in rule im- serves several case moved this the district court to dismiss the portant helps preserve respect interests. It grounds. action Devines’ on abstention The De- judges by minimizing appellate-court due trial vines, counsel, through responded and succeeded they interference with the numerous decisions avoiding non-lawyer parent, in though perhaps dismissal. A pre-judgment litiga- stages make in the must person competent the most to ability litigants reduces the to tion. It ha- present evidence relevant to child’s dis- his/her opponents clog through rass to the courts ability process at hearing, a due would ill- be costly time-consuming ap- a succession of equipped to contest a on such a motion based peals. is crucial to the It efficient administra- difficult issue. (Id. 263-64, justice. tion of at 104 S.Ct. at 1054.) Flanagan, Supreme

1. In Court stated: objective independent of concern for the Supreme has not di- Although Court sum, proceeding.... of the In of whether fairness rectly addressed issue concede, petitioners estabhshing se is immedi- a viola- to leave denial rejected consistently requires it has tion of their asserted ately appealable, defense, appellate jurisdiction interlocutory showing prejudice to their such implicate pretrial which not analogous violating area order does coverage by the choice of counsel. The party’s right to meet the third condition applied collateral or- “strictly exception: not [the it is Court collateral-order im- parties pursued test when “effectively doctrine] der from a unreviewable (Id. rulings on mo- 267-68, trial appeal of court mediate at (internal omitted).) to counsel.” Richardson- disqualify tions at 1056 citations Merrell, Roller, 430, 105 Inc. spe- Alternatively, the Court noted if a (1985). 2757, 2761, L.Ed.2d 340 See S.Ct. prejudice showing required cific were to 1057; 269, 104 at at S.Ct. Flanagan, 465 U.S. petitioners’ assert- demonstrate violation of Firestone, at 676. at 449 U.S. rights, fail the challenged ed order would Firestone, that an order In the Court held of the order second collateral doctrine opposing disqualify to denying a motion separability merits test — subject ease not a civil counsel ease. at at 1056-57. Id. S.Ct. it was reviewa- interlocutory appeal because Accordingly, regardless petition- of whether judgment underlying in the upon a final ble required prejudice ers were demonstrate Firestone, at litigation. to show a violation of their asserted if, upon noted that at 676. The Court right, not the collat- the order would judgment after final of the order review eral doctrine. case, determined to the order were Richardson-Merrell, Finally, in the Court erroneous, any prejudice could be remedied in a disqualifying counsel held that an order ordering a new

by vacating the interlocutory subject civil case was 377-78,101 Id. at 675. trial. the collateral order doctrine. under Richardson-Merrell, Flanagan, the Court held 440— counsel disqualifying a criminal defendant’s rejected 2766. The the lower S.Ct. at immediately appealable was not appellate attempt distinguish court’s 465 U.S. at collateral doctrine. analysis Flanagan prejudice Court’s The Court stated: Flanagan 104 S.Ct. at 1057. grounds that the question on the Instead, case.2 correctly decision with criminal post- dealt Petitioners concede Flanagan analysis adopted the Court disqualification or- conviction review prejudice: showing “If a regard with extent that the fully der is effective reversal, then prejudice prerequisite is a right to of one’s choice is asserted counsel separate’ from like, ruling ‘completely is not example, the Amendment for Sixth cannot be assessed the merits because it right represent Obtaining to re- oneself. entered; judgment been on until final right of a not a versal for violation such does hand, showing prejudice a of is to the other require showing prejudice the de- a fense, ruling then can effective- required, not right constitutional since the reflects ly judgment.” of the free reviewed protection of the defendant’s choice position "[ajllhough delay anathema in criminal Appeals that cases, is taken the 2. The Court of had strictly applied judgment disputes, Flanagan the final civil as also undesirable in it is narrowly very applied the pur- and collateral Appeals recognized. rule One the Court of itself the criminal nature of because of pose judgment rule embodied in the final Flanagan Concluding Court’s the case. that the inherently delay ac- avoid the is to 1291 jurisdic- appellate denying interlocutory focus interlocutory ap- time-consuming companies delay potential inherent tion had been on 433-34, peals." at 105 S.Ct. at 2762. 472 U.S. grant inlerlocutoiy appeal, the an lower in the delay apparent risk of about It is that the same delay is much more severe court noted that Court was con- Richardson-Merrell which the problem than in the civil in the criminal context disqualification context of counsel cerned in attempt distinguish Rejecting to this context. present is here as well. Flanagan, Court stated the Richardson-Merrell 584

Richardson-Merrell, 436-37, 472 at proceeding.” Flanagan, U.S. 105 ness of the 268, (citation omitted). (citing Flanagan, 465 at at S.Ct. at 2764 U.S. at 104 S.Ct. 1056 1055-57). Thus, 267-69, Accordingly, violating at 104 S.Ct. the Sixth Amend- disqualifying right represent ment the Court held orders to oneself is reviewable upon cases are not collateral a final is not properly counsel in civil so, subject interlocutory appeal. doing subject interlocutory In appeal. to to recognized hardship the financial Court Although right pro proceed to se in the might impose on a ruling that such a litigant,_ statutory, civil context is rather than consti- excep- ‘transform the limited declined “to tutional right as is Sixth Amendment tion Cohen into license for carved out Flanagan, discussed the same interests finality imposed of the rule disregard broad by would be harmed an erroneous order ” 440, 1291.’ Id. at Congress in 105 denying party proceed leave to se.4 As omitted). (internal at citation 2766 notes, majority such harms Supreme prece- Court what Reviewing party’s those has been characterized as a dents, autonomy dignity it clear that an order seems interests. See McKas 178, 168, does Wiggins, leave to se not fall kle v. (1984) rulings within narrow class of which are 122 (noting L.Ed.2d immediately appealable the collateral right Sixth Amendment to Supreme order doctrine.3 The Court con- a criminal case affirm “exists to the ac- Flanagan dignity cluded in and Richardson- cused’s autonomy.”) both individual showing prejudice Flanagan, recognized “if a In Merrell that is not that the required, ruling right encompasses then the can be reviewed on to only not process a due independent Richardson- concern but an Merrell, 437, autonomy Flanagan, 105 S.Ct. at 2764 U.S. interest well. 267-68, (citing Flanagan, 465 U.S. at U.S. at S.Ct. at 1056. The Court 1055-57). concluded, however, Accordingly, such an only S.Ct. at or- that such an inde- pendent der prong exempt petitioner would fail the third interest would and, thus, Coopers Lybrand showing test from a required prejudice & would in or- interlocutory appeal. McKaskle, subject not be der to obtain reversal. See 8,104 951, Flanagan, that obtaining the Court stated U.S. at (noting n. S.Ct. at n. 8 right reversal for violation of the Sixth that a Amend- denial of the se is ment oneself “does not analysis amenable harmless error be- require showing prejudice respected the de- cause is “[t]he either or it is not.”). fense, California, since the reflects constitutional See also Faretta v. protection free in- of the defendant’s choice 45 L.Ed.2d (1975) dependent objective (stating for the fair- concern that there is no need to However, Richardson-Merrell, support 3. The cites three circuit cases in which was decid- type O'Reilly, of its that an order at issue conclusion petition- ed after makes it clear that if a Britt, immediately appealable. Reshard prejudice er must demonstrate in order to obtain Cir.1987), vacated, 1580-81 violating right, reversal of an an asserted banc); (11th Cir.1987) (en Pope F.2d 222 C.E. separability then the order issue violates States, Equity United 818 F.2d Trust v. Coopers Lybrand preju- test and if (9th Cir.1987); O'Reilly v. The New York Times reversal, prerequisite obtaining dice is not a (2d Cir.1982). 692 F.2d 866-67 How- unreviewabilily prong then the of the test is not ever, persuasive. none is Richardson-Merrell, satisfied. 37, 472 U.S. at 436- Reshard, majority essentially the on which bas- Indeed, at S.Ct. 2764—65. the Reshard analysis, by es en its was vacated the banc court vacated) panel (again, opinion whose was ac- binding. Pope Equity and therefore is not C.E. O’Reilly's knowledged reasoning that much of simply Trust concludes without discussion that by had been undercut Richardson-Merrell. Resh- denying petitioner right pro- an order to the ard, 819 F.2d 1579. at pro ceed se fits within the collateral order doc- immediately appealable. trine and is Id. at 697. 4. It should be borne in mind that there is more Primarily, O’Reilly holding based of immedi- its here, artificiality than a that the little in crux of appealability difficulty appel- ate on the which an this case is Devine's desire to dismiss retained demonstrating prejudice lant would have in represent counsel and his own son. upon resulted from an erroneous order review of judgment. O'Reilly, a final 692 F.2d at 866-67. attorney the of mastery legal of as an behalf someone else. pro party’s se evaluate Trust, is not Pope Equity such an assessment at 697. I procedure because C.E. a criminal necessary to whether agree majority’s determine in with conclusion Part the right his to knowingly exercised defendant opinion III its that neither of the Federal se). The did conclude proceed pro Court not Rules of Civil Procedure nor the IDEA cre- jus- independent interest would that such exception general ate an to this rule. Ac- appellate jurisdiction on tify interlocutory the cordingly, appellant simply William Devine ground would otherwise be that the interest autonomy pro in proceeding has no interest Indeed, just the the destroyed. Court stated se on of his son.5 behalf opposite prejudice where need —that majority position next The takes the reversal, final for the shown the of motion denial the of William Devine to Coopers Lybrand & test is not satisfied. separate affects an interest 267-68, at Flanagan, 465 U.S. 104 S.Ct. at dignity autonomy from the and interest iden- 1056. above, namely, an in tified interest access to Furthermore, autonomy in the interest judicial system. majority equates the The pro by majority proceeding se identified the denying leave to se with indeed, present particularly is weak — denying orders leave to in forma because, noted, appellant all—in this case pauperis denying intervention as of right requesting is not the William Devine subject of which are to interlocu- —both himself, seeking just represent to is tory appeal sup- each of the three —because represent pro majority his The rath- son se. posedly “closes the courthouse door” non- purposes the of its uniquely er assumes for prevailing litigants. See Roberts v. United jurisdictional analysis has such a that Devine Cal., Dist. the N. Dist. States Court However, inappro- right. assumption is 954, 955, U.S. L.Ed. priate autonomy because the interest —which curiam) (1950) (per (permitting without challenged the asserts makes the interlocutory review the col- discussion under upon order unreviewable denying lateral order of an catapults it the narrow confines the into status); pauperis Brother depends exception clearly collateral order forma — Trainmen, R.R. 524- hood U.S. upon appellant any right whether Devine has (permitting interlocu- party unques- A his son tory denying of an order intervention tionably appear his case, right).6 as of own but has no effect instance, recognize there is no discussion of 5. this is somewhat of a contra- 1389-90. For I terms, dealt requirement but that is how it is with separability diction as there in Cohen. by majority. Furthermore, simply Court asserts the Roberts without discussion forma persuasive nature of these cases in immediately appealable pauperis status are First, severely opin- se context is limited. both Roberts, exception. long currently ions were written before con- opin- at ions, these 70 S.Ct. at Neither of trolling three-prong lest was established Coo- embryonic stage which were written in pers Lybrand. Trainmen & Brotherhood R.R. doctrine, provides collateral order clear Cohen, formally prior decided which es- guidance application of doctrine. as to the exception, and Rob- tablished collateral order only year after It was decided Cohen. also erts contrast, Supreme precedent re- be noted that district court in Brother- should application its lied on in this dissent details appeal ... hood R.R. Trainmen “allowed an of its order Lybrand opinions Coopers later test. These intervention,” an action emphasize importance suggests a basis of which somewhat different consequent narrowness of the collat- rule and authority appellate that which would later than regard- concerns eral order doctrine. The same become the collateral order doctrine. Brother- economy, independence ing judicial Trainmen, R.R. hood court, delay compelled the Court trial which Additionally, although at 1389. the Court expansion reject of the collateral jurisdiction had determined that it because the interlocutory appeal of dis- doctrine to include right sufficiently of intervention as of denial qualification assuredly are relevant the orders explicit- permit appeal, Court final to ly apply the did pro se context. principles would which later be Id., 67 S.Ct. at established in Cohen. majority’s I unpersuasive also find as- and that the collateral order expansion sertion that an Hence, the collateral apply. doctrine does not I respect- necessary dissent, doctrine is because orders fully believing should dis- proceed denying prac- leave to se “will jurisdiction.7 miss this case for lack of tically indigent litigants prosecuting bar Op. (citing their at 581 cases.” the vacated 1580). opinion, Reshard 819 F.2d at position

majority indigent takes the an judicial

litigant’s access to interest

system necessarily finally be would de-

stroyed by denying an order leave to (and here, is not simply se. This so course, been no there has determination PROPERTIES, INC., DIGITAL a Florida may ap- A trial indigent). Devine is court Corporation, Plaintiff-Appellant, or, point existing counsel where there is counsel, repre- require counsel continue presumably newly indigent sentation of the party. Finally, indigent party may be PLANTATION, OF CITY a Florida representation able to obtain bono on his Municipal Corporation, appellants’ own. Accordingly, in ac- interest Defendant-Appellee. system cess judicial provide to the does not No. 96-4056. application

valid basis for the collateral exception. Appeals, United States Court sum, I that an believe Eleventh Circuit. proceed pro not fall does within because Sept. Coopers it fails the third & Lybrand test, requires which that the order destroy

immediately a fundamental

which upon cannot rectified review of a judgment. Supreme precedent in

the analogous affecting area orders liti-

gants’ autonomy choosing interests their

own counsel dictate such do not Coopers Lybrand test. There why

is no reason the same conclusion should i-egarding autonomy

not be reached in-

terest in self-representation which would be proceed pro

affected of leave denial Moreover, petitioning party here autonomy he interest stake since does himself,

not seek

rather a person, third albeit son. Final- his

ly, argument there is no merit

denial destroys of leave to

petitioning party’s interest in access to the

judicial system since such an order does not

necessarily preclude acquisition repre- through

sentation other According- means.

ly, I conclude that leave to upon se is reviewable of a review Assuming arguendo that the correct majority opinion, affirming Part III jurisdictional analysis, in its I would concur in trial court’s order.

Case Details

Case Name: Devine Ex Rel. Devine v. Indian River County School Board

Court Name: Court of Appeals for the Eleventh Circuit

Date Published: Sep 5, 1997

Citation: 121 F.3d 576

Docket Number: 95-4847

Court Abbreviation: 11th Cir.