Filed: Apr. 20, 2012
Latest Update: Mar. 26, 2017
Summary: GLD-151 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-1112 _ TERRY FAISON WILLIAMS, as Power of Attorney for her Father, Louis T. Faison, Sr., Appellants v. UNITED STATES OF AMERICA _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 11-cv-00395) District Judge: Honorable John E. Jones, III _ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 29, 2012 Before: FUENTES,
Summary: GLD-151 NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT _ No. 12-1112 _ TERRY FAISON WILLIAMS, as Power of Attorney for her Father, Louis T. Faison, Sr., Appellants v. UNITED STATES OF AMERICA _ On Appeal from the United States District Court for the Middle District of Pennsylvania (D.C. Civ. No. 11-cv-00395) District Judge: Honorable John E. Jones, III _ Submitted for Possible Summary Action Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6 March 29, 2012 Before: FUENTES, ..
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GLD-151 NOT PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
No. 12-1112
___________
TERRY FAISON WILLIAMS, as Power
of Attorney for her Father, Louis T. Faison, Sr.,
Appellants
v.
UNITED STATES OF AMERICA
____________________________________
On Appeal from the United States District Court
for the Middle District of Pennsylvania
(D.C. Civ. No. 11-cv-00395)
District Judge: Honorable John E. Jones, III
____________________________________
Submitted for Possible Summary Action
Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
March 29, 2012
Before: FUENTES, GREENAWAY, JR. and NYGAARD, Circuit Judges
(Opinion filed: April 20, 2012)
_________
OPINION
_________
PER CURIAM
Terry Faison Williams appeals pro se from the District Court’s entry of summary
judgment in favor of the United States on a claim that the District Court construed her to
have brought on her father’s behalf. Because the District Court erroneously permitted
Faison Williams to litigate that claim pro se, we will vacate and remand for further
proceedings.
I.
Faison Williams is the sister of Louis T. Faison, Jr., who died while incarcerated at
USP-Lewisburg. Louis T. Faison, Sr., is their father. On the basis of her brother’s death,
Faison Williams filed (through counsel) a Pennsylvania wrongful death and survivor
action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, against the United
States. She asserted no claim of her own, but purported to proceed on her father’s behalf
pursuant to a power of attorney.
The United States filed a motion to dismiss or for summary judgment on various
grounds, including lack of standing. Faison Williams’s counsel then sought leave to
withdraw, which the District Court granted. Thereafter, the District Court permitted
Faison Williams to litigate on behalf of her father pro se. In that capacity, she filed a
brief on the merits in opposition to the United States’ motion. The brief bears only her
own name and signature but, like the complaint, it makes clear that she was proceeding
solely on behalf of her father and asserted no claim of her own. Among other things, she
argued that counsel had erroneously designated her instead of her father as the plaintiff
and that her name should not have appeared in the caption at all.
On August 5, 2011, the District Court entered summary judgment in the United
States’ favor on the ground that both Faison Williams and her father lack standing under
Pennsylvania law to pursue a wrongful death action. The District Court concluded that
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only the administrator of Louis Faison, Jr.’s estate had such standing, and that the
administrator (his wife, Veta Faison) had in fact filed a wrongful death action of her own
that was then pending. Faison v. United States, M.D. Pa. Civ. No. 10-cv-02603. (That
action has since settled.)
After the deadline to appeal passed, Faison Williams filed a motion under Rule
4(a)(6) of the Federal Rules of Appellate Procedure to reopen the appeal period. The
District Court granted the motion, and Faison Williams filed a notice of appeal within the
time permitted. Once again, both the Rule 4(a)(6) motion and the notice of appeal bear
only her signature, although the notice of appeal lists both her and her father as
appellants.
On January 18, 2012, the Clerk of this Court issued an order notifying the parties
that Faison Williams is not permitted to represent her father pro se and requiring him to
personally sign and return the notice of appeal by February 1, 2012. See Becker v.
Montgomery, 532 U.S. 757, 760 (2001). Louis Faison, Sr., has not complied with that
order, though it appears that he has signed other documents that Faison Williams has
since submitted on appeal. This appeal is presently before us on the Clerk’s listing for
possible summary action, see 3d Cir. LAR 27.4 (2010); 3d Cir. I.O.P. 10.6, and on Faison
Williams’s motions discussed below.
II.
This appeal raises the threshold issues of whether Faison Williams or Louis
Faison, Sr., or both, are proper parties on appeal and whether this appeal should proceed
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in the absence of Louis Faison, Sr.’s signature on the notice of appeal or representation
by counsel. We need not resolve these issues, however, because they stem in part from
an error that Faison Williams’s timely notice of appeal gives us jurisdiction under 28
U.S.C. § 1291 to correct. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 880-81
(3d Cir. 1991). Parties may proceed in federal court only pro se or through counsel. See
28 U.S.C. § 1654. Faison Williams’s power of attorney for her father may confer certain
decision-making authority under state law, but it does not permit her to represent him pro
se in federal court. See Osei-Afriyie, 937 F.2d at 882-83 (holding that parent and
guardian could not litigate pro se on behalf of his children, and noting that “‘[i]t goes
without saying that it is not in the interest of minors or incompetents that they be
represented by non-attorneys’”) (citation omitted); see also Estate of Keatinge v. Biddle,
316 F.3d 7, 14 (1st Cir. 2002) (“[T]he holder of a power of attorney is not authorized to
appear pro se on behalf of the grantor.”); Powerserve Int’l, Inc. v. Lavi,
239 F.3d 508,
514 (2d Cir. 2001) (“attorney-in-fact” for daughter not permitted to litigate pro se on her
behalf).
Thus, the District Court should not have allowed Faison Williams to represent her
father pro se after permitting her counsel to withdraw. The District Court also should not
have reached the merits of her father’s claim in the absence of proper representation. See
Osei-Afriyie, 937 F.2d at 883; cf. Gardner v. Parson, 874 F.2d 131, 141 (3d Cir. 1989)
(reversing dismissal of incompetent plaintiff’s claim and explaining that, “[b]ecause [she]
was without a representative when the court dismissed her claims, and was otherwise
4
unprotected, the court was without authority to reach the merits of those claims”).
For these reasons, we will vacate the District Court’s judgment and remand for
further proceedings. We leave the appropriate steps on remand to the District Court’s
discretion. Solely by way of example, however, the District Court may wish to consider
revisiting counsel’s request to withdraw, appointing substitute counsel for Faison
Williams, or requiring her to retain substitute counsel under penalty of dismissal of the
action without prejudice to the merits of her father’s claim. Given our ruling that the
District Court should not have reached the merits of that claim, we express no opinion on
the merits ourselves. 1
Faison Williams has also filed a motion seeking review of a Magistrate Judge’s
recommendation in a second action that she purported to file on her father’s behalf,
1
We note that the District Court relied on Rule 2202(a) of the Pennsylvania Rules of
Civil Procedure, which provides that only the personal representative of the decedent
may generally bring an action for wrongful death. The District Court did not address
Faison Williams’s argument that her father has statutory standing to recover for his son’s
allegedly wrongful death under Pennsylvania law. See 42 Pa. Cons. Stat. § 8301(b)
(“[T]he right of action created by this section shall exist only for the benefit of the
spouse, children or parents of the deceased[.]”) (emphasis added). The District Court
also did not address the issue of what remedies, if any, Faison Williams’s father may
have under Pennsylvania law or whether the Pennsylvania procedures for obtaining such
remedies apply in federal court. See, e.g., Pa. R. Civ. P. 2206(b) (requiring court to
apportion damages on a wrongful death settlement “upon petition of any party in
interest”). In particular, the District Court did not address whether Faison Williams’s
complaint could or should be construed as an “interested party” petition under Pa. R. Civ.
P. 2206(b) or a request to intervene in the action filed by Veta Faison (M.D. Pa. Civ. No.
10-cv-02603), which has since resulted in a settlement. We do not hold that the District
Court is or was required to address these issues in the context of the present action.
Suffice it to say, however, that the complications raised by these issues are all the more
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Faison Williams v. United States, M.D. Pa. Civ. No. 12-cv-00064. We decline to
construe the motion as a notice of appeal from that action because we lack jurisdiction to
review the Magistrate Judge’s recommendation directly. Objections to that
recommendation must instead be filed in the District Court. See United States v.
Polishan, 336 F.3d 234, 239, 240 n.3 (3d Cir. 2003). We ordinarily might direct our
Clerk to transfer the motion to the District Court to be treated as an objection to the
Magistrate Judge’s recommendation. It appears, however, that Faison Williams has filed
this motion with the District Court as well. Faison Williams captioned the motion with
the civil action number for the action currently under review and the motion has been
docketed in this action (M.D. Pa. Civ. No. 11-cv-00395), rather than the action in which
she actually challenges the Magistrate Judge’s recommendation (M.D. Pa. Civ. No. 12-
cv-00064). We trust that the District Court will consider Faison Williams’s motion, if
appropriate, in connection with the appropriate action. Of course, enforcing the
requirement that Faison Williams obtain counsel in order to litigate on her father’s behalf
should go a long way toward insuring more orderly proceedings on remand. Faison
Williams’s motions for the appointment of counsel on appeal and for an extension of time
to retain counsel on appeal are denied.
reason to require representation by counsel to protect whatever rights Faison Williams’s
father may have before entering judgment on his claim.
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