On Appeal From the United States District Court For the District of New Jersey (D.C. Civ. No. 96-cv-00457)
Before: Becker,* Roth, Circuit Judges, and Diamond, District Judge.** *Honorable Edward R. Becker, United States Circuit Judge for the Third Circuit, assumed Chief Judge status on February 1, 1998. **Honorable Gustave Diamond, United States District Judge for the Western District of Pennsylvania, sitting by designation.
The opinion of the court was delivered by: Becker, Chief Judge.
(Filed November 23, 1998)
Robert and Maura Collinsgru ("the Collinsgrus"), acting on behalf of their son, Francis Collinsgru ("Francis"), appeal from the district court's dismissal of their son's complaint against the Palmyra Board of Education ("Palmyra"). The Collinsgrus sought to represent Francis in a civil suit following a state administrative decision to deny their son special education services under the Individuals with Disabilities Education Act, 20 U.S.C. § 1400 et seq. (1994 & Supp. 1997) (the "IDEA").*fn1 The district court found that it was bound by our decision in Osei-Afriyie v. Medical College of Pa., 937 F.2d 876, 882 (3d Cir. 1991), in which we held that a non-attorney parent could not represent his children in a tort action in federal court. After holding that the Collinsgrus could not represent Francis themselves, the court gave the parents thirty days in which to hire an attorney for him. When they failed to do so, the district court dismissed Francis's claims without prejudice for failure to prosecute. On appeal, the Collinsgrus contend that Osei-Afriyie does not control because: (1) the IDEA creates the same rights in parents that it creates in children; (2) the claims in their son's complaint are functionally their own; and (3) they should therefore be allowed to proceed pro se on those claims.
We first must consider whether we have jurisdiction over this appeal, in light of the fact that the district court's order was neither a final resolution on the merits nor an interlocutory order of the type clearly appealable under 28 U.S.C. § 1292. We conclude that we have jurisdiction under the collateral order exception to 28 U.S.C. § 1291. On the merits, we conclude that the IDEA does not confer joint substantive rights on parents and their children. We agree that the IDEA grants parents ample procedural rights to ensure active parental involvement at all stages of the development and implementation of a child's individual educational program, even through the administrative process. We think, however, that Congress's decision to endow parents with these procedural rights should not be read, under the language of the IDEA, to imply that parents also possess the same underlying substantive rights that their children possess. Therefore, we do not think that the Collinsgrus may properly be said to be suing under their own cause of action. We conclude, in light of the IDEA's language and the statutory and common law rules guarding against non-attorney representation of another, that parents seeking to enforce their child's substantive right to an appropriate education under the IDEA may not represent their child in federal court.
At all relevant times, the Collinsgrus resided in Palmyra, New Jersey, and Francis attended the Palmyra Public Schools. The Collinsgrus maintain that Francis is learning disabled, and needs to receive an education that will accommodate his learning disabilities, but the School Board's Child Study Team decided that he was ineligible to receive special education services. Accordingly, the Collinsgrus sought special education services through the administrative procedures established by the IDEA. Under the express provisions of the IDEA, the Collinsgrus were able to participate in the administrative proceedings without legal representation, though they engaged the assistance of a non-lawyer expert. See 20 U.S.C. § 1415(h)(1). Following a nineteen-day hearing, the Administrative Law Judge ("ALJ") determined that Francis's educational difficulties were not severe enough to warrant special services.
The Collinsgrus, proceeding pro se, filed a civil suit contesting this determination in the District Court for the District of New Jersey. 20 U.S.C. § 1415(i)(2)(A). In their initial complaint, the Collinsgrus alleged that Palmyra had inadequately tested Francis for a disability and that the School Board had interfered with an independent evaluation of his needs. In addition, they contended that the decision by the ALJ was contrary to the law and to the record in the case, and that the ALJ had "manufactured" testimony. Finally, they asserted that the decision was tainted by the public policy position of the State Commissioner of Education that too many students in New Jersey were being labeled as learning disabled. The Board answered the complaint, but also objected by letter to the fact that, rather than hiring a lawyer to represent Francis, the Collinsgrus were attempting to represent him themselves. In response, the Collinsgrus amended the caption of their complaint to emphasize that they were asserting their own rights as parents under the IDEA, as well as their son's rights, to ensure that their son received the free, appropriate education guaranteed by the Act.
The Collinsgrus acknowledge that they would prefer to be represented by experienced counsel rather than continue to pursue their appeal in the federal district court pro se. Although the Collinsgrus are represented by attorneys from the Public Citizen Litigation Group in their appeal before this Court, these attorneys have entered their appearance solely for the purpose of litigating the regionally and nationally important question of the Collinsgrus' right to proceed pro se before the district court. The Collinsgrus concede that they do not qualify for appointment of counsel under the in forma pauperis statute, 28 U.S.C. § 1915 (1994). However, because of the magnitude of this litigation, the Collinsgrus explain that they cannot afford to retain an attorney on a normal fee basis to handle their civil case, nor have they been able to locate an attorney willing to take their case on a contingent fee or pro bono arrangement.
The district court held that the Collinsgrus were not entitled to represent Francis pro se in the civil action, reasoning that this result was compelled by our decision in Osei-Afriyie. The district court also rejected the Collinsgrus' effort to characterize their IDEA appeal as an assertion of their own claims. Rather, the court ruled, Francis was the real party in interest and must be represented by an attorney. The court gave the Collinsgrus thirty days to retain counsel, prescribing that, if counsel were not retained, Francis's claims would be dismissed pursuant to Fed. R. Civ. P. 41(b) for failure to prosecute.
When the Collinsgrus failed to retain counsel, the district court dismissed Francis's claims, staying the parents' claims pending resolution of the present appeal. Although the Collinsgrus sought certification of an interlocutory appeal under 28 U.S.C. § 1292(b) (1994), the district court refused to certify the issue. The court did, however, advise the Collinsgrus that they could invoke the collateral order exception identified in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949), in order to seek immediate interlocutory review under 28 U.S.C. § 1291 (1994). The Collinsgrus then filed a motion in the district court requesting that it clarify which claims they could maintain as parents and which only their son could maintain. The district court declined to provide this clarification, concluding that such a ruling would constitute an advisory opinion. This appeal followed.
II. Appellate Jurisdiction and Standard of Review
As a threshold matter, we must determine whether we have jurisdiction to hear this appeal. The district court dismissed only Francis's claims for failure to prosecute; the Collinsgrus appeal from this dismissal, as well as from the related determination that the Collinsgrus could not represent Francis themselves. However, the Collinsgrus also made certain claims on their own behalf under the IDEA; the district court stayed these claims until the issue of Francis's representation is resolved. As a result, the challenged order did not finally resolve the merits of this case, which would have authorized ordinary review under 28 U.S.C. § 1291, nor was the order of an injunctive nature, such that it would have been immediately appealable pursuant to 28 U.S.C. § 1292(a). Both the Collinsgrus and the School Board submit that the question whether parents may represent their children in federal civil actions following administrative findings under the IDEA falls within the collateral order exception to the requirement of finality imposed by § 1291. Despite the agreement of both parties, we have an independent obligation to examine our jurisdiction to hear this appeal. FW/PBS, Inc. v. City of Dallas, 493 U.S. 215, 230-31 (1990).
This Court has jurisdiction over interlocutory appeals under § 1291 only if the challenged order falls within the collateral order exception to the finality requirement of § 1291. An appeal from a non-final order will lie if:
(1) the order from which the appellant appeals conclusively determines the disputed question; (2) the order resolves an important issue that is completely separate from the merits of the dispute; and (3) the order is effectively unreviewable on appeal from afinal judgment.
In re Ford Motor Co., 110 F.3d 954, 958 (3d Cir. 1997). This test derives from the Supreme Court's opinion in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949).
The first prong is easily met here. It is beyond dispute that the district court's order of October 29, 1996, denying the Collinsgrus leave to represent their son in a civil suit following the administrative denial of special education rights under the IDEA, leaves no room for further consideration of this issue by the district court. The court's order gave the Collinsgrus thirty days to obtain outside counsel or face dismissal of those claims brought solely on behalf of Francis, for failure to prosecute. The Collinsgrus have no further opportunities before the district court to reopen the question of their ability to represent Francis.
The second prong is also satisfied. First, the question whether the Collinsgrus may represent their son in federal district court is entirely separate from the merits of the underlying action. The Collinsgrus argue that they are entitled to represent their son's interests in federal court proceedings under 28 U.S.C. § 1654 and the IDEA. Review of this question will not require us to consider the underlying subject matter of this action -- that is, whether Palmyra improperly denied Francis appropriate special educational services and interfered with the parent's procedural rights. See Devine v. Indian River County Sch. Bd., 121 F.3d 576, 580 (11th Cir. 1997) (stating that immediate review of parental representation would not involve the court in the subject matter of the case), cert. denied, 118 S. Ct. 1040 (1998).
Under the second prong of the collateral order doctrine, we must also examine the importance of the issue to be reviewed. In re Ford Motor Co., 110 F.3d at 959. "[F]or the purposes of the Cohen test, an issue is important if the interests that would potentially go unprotected without immediate appellate review of that issue are significant relative to the efficiency interests sought to be advanced by adherence to the final judgment rule." Id. Accordingly, we must balance the importance of the Collinsgrus' right to represent their son in these proceedings with our interests in finality and in avoiding piecemeal appeals. See id. at 959-60 (citing Lauro Lines S.R.L. v. Chasser, 490 U.S. 495, 503 (1989) (Scalia, J., Concurring)). Unless appellants are able to obtain review of the question whether they may represent their son, it appears that they will be unable to proceed in the district court on a number of claims. Moreover, the question of the parents' right to represent their child under the IDEA, already litigated to the court of appeals level in other circuits, see infra, is very important to the administration of the IDEA. Accordingly, we conclude that the question presently before us is of sufficient consequence to outweigh our usual interest in finality.
The final prong of the Cohen analysis is less easily met. This prong requires that the order appealed from be effectively unreviewable after final judgment. The Supreme Court has imposed significant restrictions upon interlocutory appeals of orders regarding legal representation. See Richardson-Merrell, Inc. v. Koller, 472 U.S. 424 (1985) (denying interlocutory appeal from order disqualifying opposing counsel in civil case); Flanagan v. United States, 465 U.S. 259 (1984) (denying interlocutory appeal from an order granting motion to disqualify counsel in a criminal case); Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368 (1981) (denying interlocutory appeal from an order denying motion to disqualify opposing counsel in a civil case). The Court of Appeals for the Eleventh Circuit, facing the same question that we face here, found a relevant difference between questions of representation by counsel, which were raised in these Supreme Court cases, and questions of pro se representation. We agree that the principles of those cases do not prevent us from exercising jurisdiction over the question presented in this case.
The Devine court concluded that the question whether a party may appear pro se in proceedings before a district court cannot be effectively reviewed on appeal."[T]he right to represent one's self is effectively lost if not immediately vindicated," because the harm in erroneously denying a party leave to proceed pro se is that it injures his dignity and autonomy, something that cannot later be repaired. 121 F.3d at 580. Although the dignity/autonomy rationale loses lustre in light of our ultimate holding -- that much of what the Collinsgrus allege is their own case is actually their son's -- we believe that a concern with the rationale is at least colorable in this situation. We also think that questions of appealability should be decided ex ante and not ex post.
Finally, we think that the denial of the right to proceed pro se is analogous to an order denying a litigant leave to proceed in forma pauperis, which is immediately appealable. Roberts v. United States Dist. Court for the N. Dist. of Cal., 339 U.S. 844, 845 (1950). Like denial of leave to proceed in forma pauperis, denial of leave to proceed pro se in a civil action may operate to bar many litigants from prosecuting or defending their claims. Because these orders effectively close the courthouse door to litigants, the majority of courts to consider the issue have held that orders denying leave to proceed pro se are immediately appealable. See, e.g., C.E. Pope Equity Trust v. United States, 818 F.2d 696 (9th Cir. 1987); O'Reilly v. New York Times, 692 F.2d 863 (2d Cir. 1982). But see Flora Constr. Co. v. Fireman's Fund Ins. Co., 307 F.2d 413 (10th Cir. 1962) (denying interlocutory appeal of court's refusal to permit company to appear pro se by its non-attorney president).
We conclude that, because of the impact of the order on the litigant's case, the district court's order denying the Collinsgrus leave to represent Francis is effectively unreviewable on appeal from a final judgment, and hence we have jurisdiction to hear this appeal.
We review for abuse of discretion a district court's dismissal for failure to prosecute pursuant to Rule 41(b). Donnelly v. Johns-Manville Sales Corp., 677 F.2d 339, 341 (3d Cir. 1982). However, to the extent that the district court's dismissal of Francis's claims was based upon its construction of the IDEA, we will exercise plenary review. See In re TMI, 67 F.3d 1119, ...