Reshard v. Britt, 86-3641

• Decision Date: 16 March 1988
• Docket Number: No. 86-3641,86-3641
• Citation: 839 F.2d 1499
• Parties: Connie C. RESHARD and Leroy Reshard, Co-Personal Representatives of the Estate of Minnie Lee Reshard, on behalf of the Estate and Certain Survivors, Plaintiffs-Appellants, v. Dr. Earl BRITT, et al., Defendants-Appellees.
• Court: U.S. Court of Appeals — Eleventh Circuit

Page 1499

839 F.2d 1499 Connie C. RESHARD and Leroy Reshard, Co-Personal
Representatives of the Estate of Minnie Lee
Reshard, on behalf of the Estate and
Certain Survivors, Plaintiffs-Appellants,
v.
Dr. Earl BRITT, et al., Defendants-Appellees. No. 86-3641. United States Court of Appeals,
Eleventh Circuit. March 16, 1988.

Connie Reshard, Washington, D.C., pro se.

Richard B. Collins, Collins, Dennis & Williams, Tallahassee, Fla., for Dr. Earl Britt.

Richard Smoak, Sale, Brown & Smoak, Panama City, Fla., for Dr. George Bonk.

P. Scott Mitchell, Fuller & Johnson, Tallahassee, Fla., for Dr. David Moore.

William H. Davis, Wadsworth & Davis, Tallahassee, Fla., for Tallahassee Community Hosp.

Appeal from the United States District Court for the Middle District of Florida.

Before RONEY, Chief Judge, TJOFLAT, HILL, FAY, VANCE, KRAVITCH, JOHNSON, HATCHETT, ANDERSON, CLARK and EDMONDSON, Circuit Judges, and TUTTLE ^*, Senior Circuit Judge.

PER CURIAM:

Connie and Leroy Reshard, co-personal representatives of the Estate of Minnie Reshard, appeal a district court order disqualifying them from proceeding pro se in a wrongful death action brought on behalf of Minnie Reshard's estate and survivors. A panel of this Court reversed in a divided decision. Reshard v. Britt, 819 F.2d 1573 (11th Cir.1987). The Court took this case in banc, which resulted in the panel opinion being vacated. Reshard v. Britt, 831 F.2d 222 (11th Cir.1987).

The judges of the in banc court are equally divided on the proper disposition of this case. Therefore, the order of the district court is AFFIRMED as a matter of law. See Henderson v. Fort Worth Independent School District, 584 F.2d 115 (5th Cir.1978) (in banc ), cert. denied, 441 U.S. 906, 99 S.Ct. 1996, 60 L.Ed.2d 375 (1979).

AFFIRMED BY OPERATION OF LAW.

TJOFLAT, Circuit Judge, dissenting in which JOHNSON and CLARK, Circuit Judges and TUTTLE, Senior Circuit Judge, join:

I.

In January 1984 Connie Reshard and Leroy Reshard (the Reshards) were appointed as personal representatives of the estate of Minnie Reshard. Acting as personal representatives,

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the Reshards filed a wrongful death suit in federal district court on behalf of the decedent's estate and certain of her survivors. ¹ The Reshards, who are not themselves licensed attorneys, ² sought to prosecute the wrongful death claim without the aid of an attorney.

After the parties had engaged in discovery, one of the defendants moved the district court to enter an order requiring the Reshards to obtain counsel. The Reshards argued in opposition to the motion that they had a right to proceed without counsel under 28 U.S.C. Sec. 1654 (1982), which provides that "[i]n all courts in the United States the parties may plead and conduct their own cases personally or by counsel." The court rejected the Reshards' argument, concluding that section 1654 required the Reshards to obtain an attorney. The court interpreted section 1654 to prohibit a litigant from proceeding in federal court without counsel in all cases except where the litigant is seeking to prosecute his "own case[ ]." The court was of the opinion that a wrongful death action under Florida law is an action brought in a representative capacity, and that the Reshards were therefore not seeking to prosecute their "own case[ ]" within the meaning of section 1654. In accordance with this interpretation of section 1654, the court entered an order staying all further proceedings until such time as the Reshards obtained an attorney.

On appeal, a divided panel of this court reversed the district court. As a threshold matter, the panel held that the district court's order was appealable under the collateral order doctrine enunciated in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed.2d 1528 (1949). The panel then held that the Reshards were entitled to proceed without counsel because the wrongful death action was their "own case[ ]" within the meaning of section 1654. Reshard v. Britt, 819 F.2d 1573 (11th Cir.1987).

The case was then taken in banc for reconsideration of the section 1654 issue. Since the vote of the in banc court is split equally, the district court's order requiring the Reshards to obtain counsel is affirmed by operation of law. Because I disagree with this result, I respectfully dissent. I would hold that the district court's order is reviewable by way of mandamus, ³ and would issue the writ.

II.

Section 1654 provides in full as follows:

In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as by the rules of such courts, respectively, are permitted to manage and conduct causes therein.

The statutory right conferred by section 1654 was originally conferred by section 35 of the Judiciary Act of 1789, 1 Stat. 73, 92. Section 35 provided that in "all the courts of the United States, the parties may plead and manage their own causes personally or by the assistance ... of counsel." This provision for self representation, which President Washington signed into law one day before the text of the sixth amendment was...