Devine v. Indian River County School Bd.

Decision Date05 September 1997
Docket NumberNo. 95-4847,95-4847
Citation121 F.3d 576
Parties120 Ed. Law Rep. 436, 24 A.D.D. 807, 11 Fla. L. Weekly Fed. C 460 William J. DEVINE, Terry Devine, John Devine, a minor by and through his natural parents William J. Devine and Terry Devine, Plaintiffs-Counter-Defendants-Appellants, v. INDIAN RIVER COUNTY SCHOOL BOARD, Defendant-Counter-Claimant-Appellee.
CourtU.S. Court of Appeals — Eleventh Circuit

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

John W. Bowen, Largo, FL, for Defendant-Counter-Claimant-Appellee.

Before BARKETT, Circuit Judge, KRAVITCH, Senior Circuit Judge, and HARRIS * , Senior District Judge.

KRAVITCH, Senior Circuit Judge:

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"). 1 The district court denied Devine's "Emergency Motion to Allow Withdrawal of Attorneys and Pro Se Appearance," filed on the second day of trial. We affirm.


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 school year. A dispute arose as a result of Devine's belief that John required more than the daytime schooling he received at Dodgertown Elementary School. Devine urged the school board to furnish a residential placement for John, preferably at the May Institute in Massachusetts. 2 The Indian River County school board denied such placement and the Devines requested a due process hearing, see 20 U.S.C. § 1415(b)(2), to challenge the board's IEP on several grounds. At the hearing, Devine represented his family by examining witnesses and presenting evidence. The hearing officer concluded that the IEP was insufficient, as it ignored John's developmental difficulties after school hours, but also ruled that a residential placement was unnecessary.

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; 3 (2) compensatory damages for expenses incurred as a result of the allegedly deficient IEP; (3) extended eligibility under IDEA; (4) general damages; and (5) prospective relief ordering residential placement at the May Institute. 4 From their initial complaint in October, 1993 until the second day of trial, February 21, 1995, the Devines were represented by counsel. For most of the proceedings, Robert Blackmore of Oregon served as the Devines' attorney, having been admitted pro hac vice and having associated with local counsel in accordance with the district court's order.

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. 5 On June 7, however, Devine moved the district court to allow Blackmore to withdraw and to allow Devine to proceed pro se, citing undisclosed differences. The court denied the motion and Devine filed a timely notice of appeal.


As a threshold matter, we consider whether we have jurisdiction over a non-final order allegedly infringing a party's right to appear pro se. 6 The challenged order does not finally resolve the merits of the case, authorizing our review under 28 U.S.C. § 1291, nor is it one of the kinds of interlocutory orders from which an appeal may be taken pursuant to 28 U.S.C. § 1292(a). Further, the district court did not certify the order as presenting "a controlling question of law as to which there is a substantial ground for a difference of opinion," permitting appellate review under 28 U.S.C. § 1292(b). 7 Interlocutory jurisdiction only exists, then, if the challenged order fits within the narrow collateral order exception to section 1291's finality requirement. Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). 8 To satisfy Cohen, a non-final 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, 98 S.Ct. 2454, 2458, 57 L.Ed.2d 351 (1978). We conclude that we have jurisdiction over non-final orders denying pro se status.

The majority of courts to address this question have found that jurisdiction is proper. Compare Reshard v. Britt, 819 F.2d 1573 (11th Cir.) (holds order denying personal representatives of estate from representing estate pro se immediately appealable), vacated, 831 F.2d 222 (11th Cir.1987), affirming district court by equally divided court, 839 F.2d 1499 (11th Cir.1988) (en banc); 9 C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir.1987) (without discussion, holds order striking trustee's pro se pleadings on behalf of trust immediately appealable) and O'Reilly v. New York Times, 692 F.2d 863 (2d Cir.1982) (holds order denying discharge of counsel and request to proceed pro se immediately appealable) with Flora Constr. Co. v. Fireman's Fund Ins. Co., 307 F.2d 413 (10th Cir.1962) (without discussion, holds order denying motion to proceed pro se on behalf of corporation not immediately appealable), cert. denied, 371 U.S. 950, 83 S.Ct. 505, 9 L.Ed.2d 499 (1963).

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 10 and did not suggest that Devine might later be able to take over the case himself. 11

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, 888 F.2d 755, 763 (11th Cir.1989) (appeal challenging sanctions under Fed.R.Civ.P. 11 is separable from merits of underlying civil rights claim), cert. denied, 495 U.S. 952, 110 S.Ct. 2219, 109 L.Ed.2d 544 (1990); Rives v. Franklin Life Ins. Co., 792 F.2d 1324, 1327 (5th Cir.1986) (appeal challenging disqualification of trustee requires interpretation of state statute regarding trustees and is separable from merits of underlying insurance dispute). Consequently, immediate review will not involve us in the subject matter of the lawsuit, namely, whether John was wrongly denied appropriate educational services. Cf. Holt v. Ford, 862 F.2d 850, 853 (11th Cir.1989) (en banc) (order denying appointed counsel in in forma pauperis civil rights action not separable because decision to appoint counsel requires consideration of legal and factual complexity of case on the merits). 12

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, 449 U.S. 368, 101 S.Ct. 669, 66 L.Ed.2d 571 (1981) (order denying motion to disqualify opposing counsel in civil case); Flanagan v. United States, 465 U.S. 259, 104 S.Ct. 1051, 79 L.Ed.2d 288 (1984) (order granting motion to disqualify defense counsel in criminal case); Richardson-Merrell, Inc. v. Koller, 472 U.S. 424, 105 S.Ct. 2757, 86 L.Ed.2d 340 (1985) (order granting motion to disqualify opposing counsel in civil case). These decisions suggest that representation-related orders are either fully reviewable on final appeal, thereby violating the unreviewability prong of Cohen, or are subject to review for prejudicial error, thus requiring an appellate court to investigate the merits of the underlying dispute, in violation of Cohen 's separability requirement. 13

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, 449 U.S. at 378, 101 S.Ct. at 675, we believe that the right to represent one's self is effectively lost if not immediately vindicated. The harm in erroneously denying a party leave to proceed pro se is that it injures his/her dignity and autonomy, and this harm cannot be repaired after a judgment on the merits. See McKaskle v. Wiggins, 465 U.S. 168, 178, 104 S.Ct. 944, 951, 79 L.Ed.2d 122 (1984) ("The defendant's appearance in the status of one conducting his own defense is important in a criminal trial, since the right to appear pro se exists to affirm the accused's individual dignity and autonomy."). 14 Moreover, this harm exists quite apart from any prejudice a party might incur from trying his/her case with an unwanted attorney; that is, the affront to a litigant's right to conduct the case would persist even if the party were granted a new trial because of an erroneous denial of pro se...

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