Donna Hand v. James Bibeault

[DO NOT PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________ FILED
U.S. COURT OF APPEALS
No. 10-11573 ELEVENTH CIRCUIT
Non-Argument Calendar OCTOBER 19, 2010
________________________ JOHN LEY
CLERK
D.C. Docket No. 8:09-cv-01921-SDM-AEP

DONNA HAND,
individually and as a Authorized Representative,

Plaintiff-Appellant,

versus

JAMES BIBEAULT,
individually and as Jacksonville District Director DEEOICP,
DAVID MILLER,
individually and as Jacksonville Asst. Deputy Director DEEOICP,
MARK STEWART,
individually and as Jacksonville FAB manager DEEOICP,
LEE SANTOS,
individually and as Jacksonville claims examiner DEEOICP,
JULIA DRAPER,
individually and as Jacksonville Senior Claims Examiner DEEOICP,
JOHN ELLIS,
Dr., M.D. MPH. A.B.IME, individually and as DMC for Jacksonville DEEOICP,
et. al.,

Defendants-Appellees.
 ________________________

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

(October 19, 2010)

Before BARKETT, HULL and FAY, Circuit Judges.

PER CURIAM:

Donna Hand appeals pro se from the dismissal of her complaint against

various employees and private contractors of the U.S. Department of Labor’s

Division of Energy Employees Occupational Illness Compensation (DEEOIC).

She argues, in relevant part, that the district court erred in finding that she lacked

standing to sue the defendants, either on her own behalf or as the pro se authorized

representative of certain unnamed claimants under the DEEOIC’s Energy

Employees Occupational Illness Compensation Program (EEOICP).

I.

In her original, pro se complaint, Hand alleged that the defendants had

fraudulently denied benefits to certain unnamed claimants under the EEOICP. She

further alleged that, as the claimants’ authorized representative, she was entitled to

a percentage of the amount ultimately awarded to them, and, thus, the defendants

had injured Hand’s “possessory interest” in the benefits. She sought actual,

2
prospective, and punitive damages for herself, as well as full benefits for the

claimants, pursuant to the EEOICP, 42 U.S.C. § 7385s-6(A); the Federal Tort

Claims Act, 28 U.S.C. § 1346(b); and the Fifth Amendment.

The district court struck Hand’s complaint, finding that she was not an

attorney and, thus, could not represent the claimants, and the complaint failed to

comply with Federal Rules of Civil Procedure 8 and 10 by making a short and

plain statement of a viable claim. Despite the court’s instruction to file a proper

complaint and its warning that failure to comply would result in dismissal, Hand

refiled a pro se complaint that was substantially the same as the original.

Accordingly, the court dismissed the complaint with prejudice, finding, in relevant

part, that Hand’s authorization to represent the claimants in the administrative

process did not extend to court proceedings, and she could not sue on her own

behalf because the DEEOIC was not responsible for paying any fee the claimants

might have owed her.

II.

We review questions of jurisdiction, including standing, de novo. Dermer v.

Miami-Dade Cnty., 599 F.3d 1217, 1220 (11th Cir. 2010). To have standing to

sue, the plaintiff must provide evidence of an injury in fact, causation, and

redressibility. Id. An attorney whose only interest in a case derives from her

3
contingency fee arrangement with the plaintiff or from a statutory-fee provision

does not herself have standing as a separate party to the suit. Smith v. South Side

Loan Co., 567 F.2d 306, 307 (5th Cir. 1978).

In the federal courts, “parties may plead and conduct their own cases

personally or by counsel.” 28 U.S.C. § 1654. The Middle District of Florida

permits only licensed and admitted attorneys, as well as certain eligible law

students, to appear as counsel in proceedings before it. See M.D. Fla. R. 2.01(a)-

(b), 2.02, 2.05. A non-attorney who is authorized to bring suit on behalf of a party

may not appear pro se as that party’s “legal counsel,” even where statutes or

regulations permit the person to serve as the party’s representative in

corresponding administrative proceedings. See, e.g., Devine v. Indian River Cnty.

Sch. Bd., 121 F.3d 576, 581-82 (11th Cir. 1997) (holding that parent may not

appear pro se on behalf of child who was denied relief in administrative hearing

held under the Individuals with Disabilities Education Act), overruled in part on

other grounds, Winkleman ex rel. Winkleman v. Parma City Sch. Bd., 550 U.S.

516, 535, 127 S.Ct. 1994, 2006-07, 167 L.Ed.2d 904 (2007).

Pursuant to 20 C.F.R. § 30.600(a), a claimant for benefits under the

EEOICP may designate an individual to represent her in the informal

administrative claims process. That person need not be an attorney. See § 30.601.

4
If the representative charges the claimant a fee for services and costs, “[t]he

claimant is solely responsible for paying the fee and other costs. [The Department

of Labor] will not reimburse the claimant, nor is it in any way liable for the

amount of the fee and costs.” § 30.602. Nothing in §§ 30.600 or 30.601 suggests

that federal courts must permit non-attorney representatives to appear as counsel

in any suit filed on the claimants’ behalf.

Hand has never alleged that she filed an EEOICP claim of her own. Her

only alleged personal interest or injury lies in the compensation she allegedly

stood to receive if the claimants had been awarded benefits, for which only the

claimants, not the DEEOIC, are responsible. See § 30.602. As such, she does not

have standing to sue on her own behalf. See Smith, 567 F.2d at 307. Furthermore,

assuming arguendo that Hand’s purported status as the claimant’s authorized

representative in the administrative proceedings would have entitled her to file suit

on their behalf, she was only legally authorized to bring suit through counsel, not

to appear as non-attorney, pro se “counsel” herself. Cf. Devine, 121 F.3d at 581-

82. Therefore, when she insisted on appearing pro se but failed to assert any

permissible claim of her own, the district court did not err in dismissing the

complaint.

For the foregoing reasons, we affirm the judgment of the district court.

5
AFFIRMED.

6