Blake Andrew Warner v. School Board of Hillsborough County, Florida

[DO NOT PUBLISH]
In the
United States Court of Appeals
For the Eleventh Circuit
____________________
No. 23-12408
Non-Argument Calendar
____________________
BLAKE ANDREW WARNER,
Plaintiff-Appellant,
versus
SCHOOL BOARD OF HILLSBOROUGH COUNTY, FLORIDA,
Defendant-Appellee.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:23-cv-00181-SDM-JSS
____________________
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2 Opinion of the Court 23-12408
____________________
No. 23-12411
Non-Argument Calendar
____________________
BLAKE ANDREW WARNER,
Plaintiff-Appellant,
versus
SCHOOL BOARD OF HILLSBOROUGH COUNTY,
FLORIDA,
Defendant-Appellee.
____________________
Appeals from the United States District Court
for the Middle District of Florida
D.C. Docket No. 8:23-cv-01029-SDM-SPF
____________________
Before W ILSON , L UCK , and L AGOA, Circuit Judges.
PER CURIAM:
Blake Warner, acting on behalf of himself and his minor
child, J.W., sued the School Board of Hillsborough County in two
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23-12408 Opinion of the Court 3
separate actions both alleging that the School Board engages in ra-
cially discriminatory districting practices.1 The district court dis-
missed the action brought by Warner’s minor child because
Warner, as a nonlawyer, could not represent his minor child pro se.
Warner appeals the order dismissing his minor child’s claims. For
the reasons that follow, we affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND
Warner’s child, J.W., is a Black student in the Hillsborough
County school system. On January 26, 2023, Warner, acting pro se
and asserting claims for both himself and J.W., filed the 181 Case
alleging that the School Board intentionally segregated students by
race. The School Board achieved this, Warner says, by strategically
drawing district boundaries along demographic lines resulting in a
discriminatory effect on minority students, including J.W. Accord-
ing to Warner, these districting decisions caused minority students
to be assigned to lower-performing schools while white students
were assigned to higher-performing schools. The School Board
moved to dismiss the complaint for lack of subject-matter jurisdic-
tion, which the district court denied.
1 Warner filed two separate cases, both alleging similar facts and harms. See
Warner v. School Board of Hillsborough County, Florida, No. 23-cv-181 (M.D. Fla.)
and Warner v. School Board of Hillsborough County, Florida, No. 23-cv-1029 (M.D.
Fla.). Where the distinction does not matter, we refer to these together as
“Warner’s cases” and, where the distinction does matter, we refer to them
separately as “the 181 Case” and “the 1029 Case.”
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4 Opinion of the Court 23-12408
A few days after the district court denied the motion to dis-
miss in the 181 Case, Warner filed a separate complaint, initiating
the 1029 Case. There, Warner alleged that the School Board made
additional changes to district boundaries since the commencement
of the 181 Case, causing J.W. to have to choose between “a failing
racially segregated school in his community” or “driving approxi-
mately two hours per day to distant schools” for the 2023–24 school
year. In sum, Warner alleged, the School Board’s new redistricting
created a greater degree of segregation by assigning J.W. to a fur-
ther-away, minority-majority school despite there being a closer
and higher-performing, majority-white school that he was not per-
mitted to attend.
Warner then filed a notice of related action and a motion to
consolidate in the 181 Case, informing the district court of his 1029
Case. Without ruling on the motion to consolidate in the 181 Case,
the district court entered an order to show cause in the 1029 Case,
directing Warner to demonstrate why that case should not be dis-
missed for improper claim-splitting. Warner responded, explaining
that the 181 Case alleged past harms, while the 1029 Case alleged
future harms for the then-upcoming school year based on J.W.’s
new school placement. At the same time, Warner amended his
complaint in the 181 Case and the School Board filed its answer.
Two weeks later, before the district court took any action
on the show-cause order, the School Board moved to dismiss the
complaint in the 1029 Case. There, the School Board argued that
Warner engaged in improper claim splitting, his claims were
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23-12408 Opinion of the Court 5
barred by a previous settlement agreement, and he failed to state a
claim. After full briefing from the parties, the district court granted
the motion and dismissed the complaint in the 1029 Case. In that
order, the district court explained two bases for its ruling: first, it
found that Warner improperly split his claims between the two
cases, both of which involved the same plaintiffs, the same defend-
ant, and closely interrelated claims of school segregation. Further,
the district court reasoned, discovery in both cases would overlap
and would form “a convenient trial unit.” Finally, while the inju-
ries alleged in each case reportedly occurred at different times, they
arose from the same allegedly ongoing segregation scheme. As a
second independent basis for dismissal, the district court sua sponte
raised the issue of Warner’s pro se representation of his son, J.W.
Citing our decisions in FuQua v. Massey, 615 F. App’x 611 (11th Cir.
2015) and Devine v. Indian River County School Board, 121 F.3d 576
(11th Cir. 1997), the district court determined that Warner was not
permitted to assert his minor child’s claims pro se and would need
to appear through a lawyer to pursue an action on J.W.’s behalf.
For these reasons, the district court dismissed both of Warner’s
complaints2 without prejudice and afforded him the opportunity to
file an amended complaint in the 181 Case asserting all of his own
claims there.3 As for J.W.’s claims, the district court cautioned
2 The district court entered its dismissal order in the 1029 Case and then filed
a copy on the docket in the 181 Case.
3 Warner timely amended his complaint in the 181 Case, asserting only his
own claims. That case has proceeded during the pendency of this interlocu-
tory appeal.
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6 Opinion of the Court 23-12408
Warner that, if he intended to assert J.W.’s claims, he was required
to appear through counsel.
This appeal timely followed.4
II. STANDARD OF REVIEW
The interpretation of a statute or Federal Rule of Civil Pro-
cedure is a question of law subject to de novo review. Burlison v.
McDonald’s Corp., 455 F.3d 1242, 1245 (11th Cir. 2006); Pickett v.
Iowa Beef Processors, 209 F.3d 1276, 1279 (11th Cir. 2000).
III. ANALYSIS
On appeal, Warner contends that the district court erred in
finding that a parent is not permitted to advance a child’s causes pro
se.5 Our binding precedent forecloses that argument, as we explain
below.
In Devine, we held that “parents who are not attorneys may
not bring a pro se action on their child’s behalf.” 121 F.3d at 582.
We reasoned as much because neither 28 U.S.C. § 1654 nor Federal
Rule of Civil Procedure 17(c)—authorizing pro se litigation and rep-
resentative litigation on behalf of minors, respectively—permits a
parent to represent his or her child pro se in federal court. Id. at 581.
Section 1654 authorizes parties in federal court to plead and
4 Warner appealed the dismissal of both cases, and those appeals have been
consolidated here.
5 Warner has not argued on appeal that the district court erred in dismissing
his complaints for improper claim-splitting, and we express no opinion on that
portion of the district court’s order.
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23-12408 Opinion of the Court 7
conduct their own cases personally or by counsel, but, as we said
in Devine, “it is inapposite because it does not speak to the issue
before us—whether [a parent] may plead or conduct his son’s
case.” Id. Rule 17(c), on the other hand, provides for certain rep-
resentatives, including parents, to sue on behalf of minors—but it
does not confer on those representatives a right to act as legal coun-
sel for such minors. Id.
Under our prior-panel-precedent rule, “a prior panel’s hold-
ing is binding on all subsequent panels unless and until it is over-
ruled or undermined to the point of abrogation by the Supreme
Court or by this [C]ourt sitting en banc.” United States v. Archer, 531
F.3d 1347, 1352 (11th Cir. 2008). We are, therefore, bound by our
holding in Devine: a parent cannot represent a child pro se.6
6 We do not stand alone in reaching this conclusion. See, e.g., Navin v. Park
Ridge Sch. Dist. 64, 270 F.3d 1147, 1149 (7th Cir. 2001) (“Patrick was free to
represent himself, but as a non-lawyer he has no authority to appear as J.P.’s
legal representative.”); Johns v. Cnty. of San Diego, 114 F.3d 874, 877 (9th Cir.
1997) (“The issue of whether a parent can bring a pro se lawsuit on behalf of a
minor falls squarely within the ambit of the principles that militate against al-
lowing non-lawyers to represent others in court. Accordingly, we hold that a
parent or guardian cannot bring an action on behalf of a minor child without
retaining a lawyer.” (internal quotation omitted)); Osei-Afriyie by Osei-Afriyie v.
Med. Coll. of Pennsylvania, 937 F.2d 876, 883 (3d Cir. 1991) (“The right to coun-
sel belongs to the children, and . . . the parent cannot waive this right. In
accord with the decisions discussed above, we hold that Osei–Afriyie was not
entitled, as a non-lawyer, to represent his children in place of an attorney in
federal court.”); Cheung v. Youth Orchestra Found. of Buffalo, Inc., 906 F.2d 59, 61
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8 Opinion of the Court 23-12408
Warner’s arguments to the contrary are unavailing. First,
Warner argues that Devine’s holding was narrow and applies only
to cases under the Individuals with Disabilities Education Act
(“IDEA”). But that reading ignores Devine’s discussion of § 1654
and Rule 17(c), both of which are broadly applicable to all manner
of federal litigation. Second, Warner contends that, even if Devine
were binding outside of the IDEA context, it was overruled in Win-
kelman ex rel. Winkelman v. Parma City Sch. Dist., 550 U.S. 516, 535
(2d Cir. 1990) (“[A] non-attorney parent must be represented by counsel in
bringing an action on behalf of his or her child. The choice to appear pro se is
not a true choice for minors who under state law, see Fed. R. Civ. P. 17(b),
cannot determine their own legal actions. There is thus no individual choice
to proceed pro se for courts to respect, and the sole policy at stake concerns the
exclusion of non-licensed persons to appear as attorneys on behalf of others.”),
overruled on other grounds by Winkelman ex rel. Winkelman v. Parma City Sch.
Dist., 550 U.S. 516, 535 (2007); Meeker v. Kercher, 782 F.2d 153, 154 (10th Cir.
1986) (“We hold that under Fed. R. Civ. P. 17(c) and 28 U.S.C. § 1654, a minor
child cannot bring suit through a parent acting as next friend if the parent is
not represented by an attorney.”) This is consistent, too, with our caselaw
addressing pro se litigation in other representative contexts. See, e.g., Iriele v.
Griffin, 65 F.4th 1280, 1284–85 (11th Cir. 2023) (“[W]e hold that, under the
terms of § 1654, an executor may not represent an estate pro se where there
are additional beneficiaries, other than the executor, and/or where the estate
has outstanding creditors. In such a situation as exists here, an executor of
such an estate does not bring his ‘own case’ and thus the estate must be repre-
sented by counsel.”).
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(2007). But in Winkelman, the Supreme Court resolved only the
narrow question of whether parents have their own rights to vin-
dicate under IDEA, and the Court explicitly did “not reach petition-
ers’ alternative argument, which concerns whether IDEA entitles
parents to litigate their child’s claims pro se.” 550 U.S. at 535. Third,
Warner urges us to read Devine as not “establish[ing] an ironclad
bar to parental representation, admitting of no exceptions,” and to
instead consider exceptions in the best interests of the child. But
there is simply nothing in Devine’s text that would allow us to read
in such flexibility.
Finally, Warner asks us to overturn Devine en banc. This we
cannot do. Under our prior panel precedent rule, we as a panel are
bound by Devine “unless and until it is overruled or undermined to
the point of abrogation by the Supreme Court or by this court sit-
ting en banc.” Archer, 531 F.3d at 1352.
One final consideration: Warner advances an appealing pol-
icy argument, explaining that our extant rules have created a
“counsel mandate.” As a starting point, under both federal and
Florida law, children cannot sue on their own because they lack
legal capacity. See Fed. R. Civ. P. 17(c); Fla. R. Civ. P. 1.210(b). If
parents cannot represent their children pro se, Warner says, “par-
ents must pay the piper or forfeit the fight.” All of this, Warner
contends, is inconsistent with three bedrock rights: the statutory
and constitutional right to self-representation; the parental right to
make critical decisions for the child; and the child’s own constitu-
tional right to access the courts without a lawyer. At least one of
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10 Opinion of the Court 23-12408
our colleagues in a sister court agrees that this “counsel mandate”
model is in conflict with our deep-rooted right to self-representa-
tion, a right that has been firmly enshrined since our foundation.
See Raskin on behalf of JD v. Dallas Indep. Sch. Dist., 69 F.4th 280, 290–
99 (5th Cir. 2023) (Oldham, J., dissenting in part and concurring in
judgment); see also id. at 294 (“But under [the Appellee’s] under-
standing, § 1654 offers minors a Hobson’s choice: litigate with
counsel, or don’t litigate at all. Dallas ISD’s heads-I-win-tails-you-
lose approach to § 1654 plainly defies the text of the statute and
centuries of Anglo-American law dating as far back as the Magna
Carta. Dallas’s position also would have baffled the Founders. As
the Supreme Court explained in Faretta [v. California, 422 U.S. 806,
827–28 (1975)], ‘the basic right to self-representation was never
questioned’ at the Founding, and ‘the notion of compulsory coun-
sel was utterly foreign to the Founders.’” (alteration adopted)).
This Court, however, is bound by our precedent, which holds that
a parent may not advance his child’s cause of action pro se. See
Devine, 121 F.3d at 581–82; Archer, 531 F.3d at 1352. For this reason,
we affirm the district court’s dismissal of Warner’s claims on behalf
of J.W.
AFFIRMED.
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