In Raskin v. Dallas Indep. Sch. Dist., No. 21-11180 (5th Cir. June 2, 2023), the Fifth Circuit goes against the weight of ten other circuits and holds that there is no absolute bar to non-attorney parents representing their children pro se in federal court under the language of 28 U.S.C. § 1654. (Here’s a prior blog post from September 4, 2020 in the topic.) Section 1654 provides that “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.”
A parent “filed this pro se action in federal district court alleging,
as relevant here, that the Dallas Independent School District (DISD) violated her children’s rights under the Genetic Information Nondiscrimination Act (GINA), 42 U.S.C. § 2000ff, et seq. The district court dismissed the GINA claims because [parent] lacked Article III standing to bring those claims on her own behalf and because [parent]—who is not a licensed attorney—could not proceed pro se on behalf of her children.”
Tht Fifth Circuit vacates and remands. “This case starts and ends with the text of 28 U.S.C. § 1654.” It sees the statutory term “own cases” as not strictly limited to a person’s personal and individual interests. “[A]t common law, non-attorneys could not litigate the interests of others.” The question then becomes whether “some other source of law alters the common-law backdrop”
“For example, if state law affords a parent the right to proceed pro se on behalf of her child, the child’s case is the parent’s ‘own’ within the meaning of § 1654. This is because the state, in giving a parent this right, assigns to the parent the child’s ‘individual choice to proceed pro se’ . . . . Congress left open to states the choice to authorize non-attorney parents to represent their children.”
While the absolute rule against parental representation (under common law and the decisional law among the circuits) protects the child’s interest to obtain trained legal counsel, “where a state has decided that pro se
parental representation does adequately protect children’s rights, the text of § 1654 does not allow us to interfere absent extenuating circumstances.” Thus, “because § 1654 does not absolutely bar parents from proceeding pro se on behalf of their children, we must conclude the district court erred in failing to consider whether federal or state law designates [parent]’s children’s claims as her ‘own’ such that she can represent them.” The panel remands the case to district court to consider that issue.
In a separate opinion, Judge Adrew S. Oldman – rather than remand – would hold that the parent has an unqualified right to represent their children pro se because the right is provided by state law. “Federal Rule of Civil Procedure 17 directs us to consider state law in determining who has the capacity to sue; and Texas law plainly lodges that capacity in . . . the parent of [the plaintiff children]. Tex. Fam. Code § 151.001(a)(7).”
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