Harvey Portnoy v. United States ( 2020 )

Case: 19-10358 Date Filed: 04/23/2020 Page: 1 of 20
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
________________________
No. 19-10358
Non-Argument Calendar
________________________
D.C. Docket No. 1:16-cv-00366-MW-GRJ
HARVEY PORTNOY,
Plaintiff-Appellant,
versus
THE UNITED STATES OF AMERICA,
Defendant-Appellee.
________________________
Appeal from the United States District Court
for the Northern District of Florida
________________________
(April 23, 2020)
Before WILLIAM PRYOR, JILL PRYOR, and BRANCH, Circuit Judges.
PER CURIAM:
Case: 19-10358 Date Filed: 04/23/2020 Page: 2 of 20
Harvey Portnoy appeals the district court’s dismissal of his wrongful death
and personal injury claims under the Federal Tort Claims Act (“FTCA”) following
his father’s death at a Florida Veterans Administration (“VA”) hospital. Portnoy
also challenges the district court’s pre-dismissal grant of his attorney’s motion to
withdraw after finding that Portnoy made “continued representation personally and
ethically untenable for his lawyer.” In the five months following his attorney’s
withdrawal, Portnoy failed to secure another attorney. The district court therefore
dismissed Portnoy’s claims without prejudice because Portnoy could not proceed
pro se as the representative of his father’s estate.
Portnoy presents three arguments on appeal. First, Portnoy argues that the
circumstances did not warrant permissive withdrawal and he was prejudiced by the
withdrawal because it was impossible for him to find another attorney. Second,
Portnoy asserts that the district court erred in dismissing his case, as he should
have been permitted to proceed pro se because his own personal interests were at
stake. Third, Portnoy argues that the Florida Wrongful Death Act (“FWDA”),
which limits damages available under the FTCA, is unconstitutional. Because
Portnoy did not assert that the district court should have allowed him to proceed
pro se in his initial brief, we do not address that issue here. Nor do we address
Portnoy’s constitutional challenge because he failed to raise that issue below. The
record shows that good cause for withdrawal existed and Portnoy’s interests were
2
Case: 19-10358 Date Filed: 04/23/2020 Page: 3 of 20
not materially affected by the withdrawal; therefore, we affirm the district court’s
orders allowing the withdrawal and dismissing Portnoy’s complaint.
I. Background
A. Bacharach’s First Motion to Withdraw
On December 7, 2016, Portnoy, in his capacity as the personal representative
of his father’s estate, sued the United States for negligent injury and wrongful
death stemming from his father’s death at a VA hospital in 2012. Portnoy alleged
that the VA hospital’s negligence during his father’s surgery resulted in a bacterial
infection, and that infection caused his death. Portnoy’s original complaint
brought two claims for relief pursuant to the FTCA: wrongful death (Count I) and
personal injury damages (Count II). In its answer, the government denied
Portnoy’s allegations and raised several defenses, including that Portnoy failed to
state a claim, and that the applicable provisions of the FWDA limited any available
damages.
On October 20, 2017, the district court ordered Portnoy to show cause as to
why his claim for personal injury damages (Count II) should not be dismissed for
failure to state a claim.1 After the district court granted Portnoy two extensions of
1
The FTCA provides district courts with jurisdiction over civil actions against the United
States for money damages for personal injury or death caused by the negligent or wrongful act of
a government employee. The United States can be held liable under the FTCA “in accordance
with the law of the place where the act or omission occurred,” which in this case is Florida. 28
U.S.C. § 1346(b)(1). The FWDA, as the district court explained, “eliminates a claim for the
3
Case: 19-10358 Date Filed: 04/23/2020 Page: 4 of 20
time in which to respond to the court’s order, on November 8, 2017, Portnoy’s
attorney, N. Albert Bacharach, filed a response to the show-cause order.
Bacharach explained that Portnoy was “refusing to take counsel’s advise [sic] and
[was] refusing to authorize [Bacharach] to respond with a legal position that takes
the provable facts in this matter into account and to set forth a comprehensive legal
argument in this matter.”
That same day, Bacharach moved for leave to withdraw from representation
pursuant to Rule 11.1(H) of the Local Rules of the U.S. District Court for the
Northern District of Florida (“Local Rule 11.1(H)”), which allows withdrawal only
with the permission of the district court. He claimed that “[d]espite frequent
communication between Plaintiff Portnoy and undersigned counsel and his staff,
numerous issues have arisen between Plaintiff Portnoy and the undersigned
counsel regarding undersigned counsel’s representation of Plaintiff.” Bacharach
further stated that “Plaintiff Portnoy no longer has confidence in undersigned
counsel and no longer believes the undersigned is acting in his best interest.”
Specifically, Portnoy believed Bacharach was “in collusion with the Veterans
Administrations and the U.S. Attorney’s Office.” Bacharach also indicated that
decedent’s personal injury from the date of the injury to the date of death when the claim is
brought with a wrongful death claim.” The district court was therefore concerned that Portnoy
was “attempting to bring a personal injury action in Count II that, under Florida law, is
eliminated by the wrongful death action in Count I.”
4
Case: 19-10358 Date Filed: 04/23/2020 Page: 5 of 20
Portnoy had been in contact with the Florida Bar and other attorneys regarding the
case and that Portnoy no longer believed that Bacharach was acting in his best
interest. Thus, Bacharach stated that he could no longer effectively represent
Portnoy and requested leave to withdraw from representation.
On November 15, 2017, the district court held a hearing on Bacharach’s
motion for leave to withdraw. During the hearing, Bacharach stated that Portnoy’s
lack of confidence in his representation was the “underlying issue,” as evidenced
by Portnoy’s “repeated” calls to the Florida Bar to complain about him and
Portnoy’s conversations with other attorneys about Bacharach mishandling the
case. Portnoy explained that his chief qualm was that Bacharach was moving too
slowly and Bacharach was “exaggerating about calling the Florida Bar all the
time.” The district court expressed concerns about whether Portnoy would be able
to proceed pro se as the representative of his father’s estate should it allow
Bacharach to withdraw. Further, if the law did not allow Portnoy to proceed pro
se, the court observed, and Portnoy could not find another attorney, then Portnoy
might be prejudiced by the withdrawal.
The district court denied the motion to withdraw without prejudice and
instead gave Portnoy an opportunity to file an amended complaint. On November
27, 2017, Portnoy filed an amended complaint, asserting similar claims: “Wrongful
5
Case: 19-10358 Date Filed: 04/23/2020 Page: 6 of 20
Death” (Count I) and “Survival Action” (Count II). 2 On December 22, 2017, the
government answered the amended complaint consistent with its original answer.
B. Second Motion to Withdraw
On February 5, 2018, Portnoy sent a letter to the district court judge
requesting the district court to “[i]ssue an [o]rder for [m]ediation to begin
[i]mmediately and [a]ppoint a [m]ediator to [s]ee [i]f all issues involved with this
case, can be resolved in a [sic] amicable way beneficial to all parties concerned.”
He described his many complaints with Bacharach, including that he was “difficult
to ever get ahold of,” and “waited until the very last minute” to file pleadings. At
the same time, Portnoy acknowledged that he would not be able to find another
attorney to replace Bacharach if he withdrew. Portnoy also mentioned that he was
living in the streets, because he lost the use of his father’s house after his death.
The district court denied Portnoy’s mediation request as a nullity on February 7,
2018.
On June 15, 2018, Bacharach filed a second motion to withdraw pursuant to
Local Rule 11.1(H) and Rule 4-1.16 of the Rules Regulating the Florida Bar
(“Florida Bar Rule 4-1.16”). Florida Bar Rule 4-1.16 allows an attorney to
withdraw from representing a client in certain circumstances, including where
2
The “Survival Action” claim (Count II) alleges that, as a result of the VA’s negligence,
Portnoy’s father experienced bodily injury, pain and suffering, and loss of earnings from the time
he developed the infection until his death.
6
Case: 19-10358 Date Filed: 04/23/2020 Page: 7 of 20
“withdrawal can be accomplished without material adverse effect on the interests
of the client . . . or other good cause for withdrawal exists.” R. Regulating Fla. Bar
4-1.16(b).
Bacharach explained that Portnoy had filed a complaint against him in
February and quoted non-privileged portions of his response to the Florida Bar:
Enclosed please find: a print out of the history of Mr. Portnoy’s case
as maintained by the Prevail Case Management Soft used by my
office; a print out of just the telephone contact with Mr. Portnoy from
the Prevail history, which shows over 28 hours of phone calls with
Mr. Portnoy; a print out of the Docket of the United States District
Court (USDC) for the Northern District of Florida regarding Mr.
Portnoy 's Federal Tort Claim against the United states [sic]; a minute
order from USDC Judge Walker dated November 15, 2017; plaintiff's
first amended complaint dated November 27, 2017; Mr. Portnoy latter
[sic] to Judge Walker filed into the record on February 5, 2018;
USDC Judge Walker's Order denying Mr. Portnoy 's letter,/motion
[sic]; and my letters to Mr. Portnoy of June 8, 2016 and February, 9,
2018. On the face of the enclosed documents it is clear that Mr.
Portnoys [sic] complaints regard[ing] me and my staff are not
substantiated. . . .
Mr. Portnoy has spoken with me repeatedly regarding my providing
him with financial help. I have repeatedly recommended that Mr.
Portnoy to [sic] contact food banks and homeless shelters in the Ocala
area seeking assistance. I have also repeatedly [suggested contacting]
his local rabbis (Mr. Portnoy is Jewish) for financial assistance. This
advice was in the context of my repeatedly explaining that I was not
allowed to give, loan or advance Mr. Portnoy money. I explained to
him that as a member of the Florida Bar I was prohibited from loaning
or advancing him money to be repaid from any possible settlement,
for the purchase of the car. Mr. Portnoy’s response was that I was
lying and that the Bar has told him that I could lend him money and
that maybe I should have to explain to the Bar why I would not help
him. In addition, Mr Portnoy has repeatedly suggested that I could
buy him a new car or van under the table; and who would know? . . . .
7
Case: 19-10358 Date Filed: 04/23/2020 Page: 8 of 20
On or around May 3, 2018, the Florida Bar informed Bacharach that there
was insufficient evidence that Bacharach had violated any rules in his
representation of Portnoy and therefore it closed the file.
Bacharach also included his notes from a May 10, 2018 phone call with
Portnoy:
Spoke to Mr Portnoy for an hour and 55 minutes. Started with telling
me that he had spoken with the Bar after they did not find violation of
the rules and told me that he had called and complained and Ms. Craft
admitted that she hadn't read the complete Bar file and would give the
Bar file to another Bar attorney who would read everything. I
explained that I found his Bar complaints distracting and it makes it
difficult to represent him. He followed up that with [sic] the Bar was
going to make me sign a declaration under penalty of perjury that I
don't have a conflict because I'm friends with the VA administrators
and that's why I wasn't trying to win his case. Then he brought up his
need for a loan for the purchase of a car or car [sic]. When I told him
Bar rules prohibited me from loaning him money or buying him a car;
he told me that the Bar also told him that he could request review of
the decision to close his complaint and that this wasn't over. Then he
talked about his fathers [sic] house and said that he had recorded our
calls from the house and that I had agreed to represent him. I told him
that it was illegal in Florida to tape conversations with other people
without their permission, that he didn't have my permission to record
our calls; and that he shouldn't record calls with others, especially
people working at the Bar.
Indeed, shortly after this call—on May 24, 2018—the Florida Bar sent Bacharach a
letter informing him that Portnoy had requested a review of the decision to close
the complaint. Bacharach claimed that Portnoy’s threats and complaints to the
Florida Bar “are extremely stressful and are objectively taking a toll on
8
Case: 19-10358 Date Filed: 04/23/2020 Page: 9 of 20
[Bacharach’s] health” . . . “to the extent that it materially impairs the [his] ability
(and desire) to represent this particular client.”
On June 20, 2018, Portnoy filed a written response, again complaining about
Bacharach’s efforts. He claimed that his “suffering and losses ‘are still mounting’
. . . because of [Bacharach’s] stalling & latency in presenting [his] case to the court
system!” He further stated that Bacharach was “also ‘taking advantage’ of the fact
that I would not be able to find another lawyer!! Perhaps not, and certainly at this
point!!” And he asserted that Bacharach was not presenting the “‘true facts’ of the
case to the Court.”
The district court held a hearing on Bacharach’s motion to withdraw, during
which Portnoy described his issues with Bacharach, consistent with his written
complaints. He told the district court that one of his main disagreements with
Bacharach arose from the October 20, 2017 show cause order: Bacharach
recommended dropping the wrongful death claim and pursuing only a claim for
pain and suffering on behalf of the patient. Portnoy vehemently disagreed.
Further, Portnoy explained that he had tried to find another lawyer but had not
been able to secure one because lawyers “don’t want to touch” a VA case or get
involved in an ongoing case. When asked for its position on Bacharach’s motion
to withdraw, the government replied that it did not have one. The district court
then offered its observations on the issue. The main issue for the district court was
9
Case: 19-10358 Date Filed: 04/23/2020 Page: 10 of 20
how to balance “the discord, which is certainly a permissive basis to withdraw . . .
against the prejudice to the client.” It announced that it would balance those
interests and issue a written order.
On June 27, 2018, the district court issued a written order granting the
motion to withdraw. It stated that “[i]t became abundantly clear at the hearing that
Plaintiff and his counsel cannot work together in a manner to give Plaintiff
effective legal representation. Therefore, under Rule 4-1.16(b) of the Rules
Regulating the Florida Bar, permissive withdrawal of Plaintiff’s counsel is
appropriate.”3 The district court also noted that Portnoy needed to obtain new
counsel because “[t]he right to appear pro se does not extend to those cases when
parties are not conducting their own cases and therefore does not apply to persons
representing the interests of others.” Because Portnoy was not conducting his own
case, and was representing the interests of others, the district court stayed the case
for 90 days to allow Portnoy to obtain new counsel.
C. Dismissal of Portnoy’s Complaint
3
Bacharach actually brought his withdrawal claim under Florida Bar Rule 4-1.16(a),
which mandates withdrawal “from the representation of a client if . . . the representation will
result in violation of the Rules of Professional Conduct or law [or] . . . the lawyer’s physical or
mental condition materially impairs the lawyer’s ability to represent the client.” He presented
arguments pursuant to both mandatory withdrawal under 4-1.16(a) and permissive withdrawal
under 4-1.16(b). In its order granting Bacharach’s motion to withdraw, the district court
declined to address Bacharach’s argument for mandatory withdrawal. We also do not address
the propriety of mandatory withdrawal on appeal because the parties do not address it in their
briefs.
10
Case: 19-10358 Date Filed: 04/23/2020 Page: 11 of 20
Portnoy moved for an extension of time to obtain new counsel and an order
for mediation on September 24, 2018. He stated that he could not find another
attorney because few attorneys are willing to take on complex VA cases. He also
asserted that one of the reasons that no attorney was willing to accept his case was
because Florida’s limitations on damages only allows a “spouse [to] seek viable
redress, and obtain Counsel to do so in a medical malpractice issue.” The district
court denied the motion and reiterated that Portnoy did not have the right to
proceed pro se in this case.
On November 29, 2018, the district court held a hearing on the issue. At the
hearing, Portnoy confirmed that no lawyer had indicated that they would take on
his case. The government stated its position: “that the Court has given Mr. Portnoy
ample time to secure alternative representation for him in his capacity as the
alleged personal representative of the estate. And so without having a lawyer to
represent him, the case [is] due to be dismissed.”
The district court dismissed Portnoy’s complaint without prejudice. It
explained that it had given Portnoy an additional five months to find an attorney,
but Portnoy’s diligent efforts “clearly [had] not come to any fruition.” Therefore,
the district court “dismiss[ed] the complaint based on the fact that the estate cannot
proceed without a lawyer. And under the law of this circuit you cannot represent
11
Case: 19-10358 Date Filed: 04/23/2020 Page: 12 of 20
the estate as a pro se litigant.” Portnoy appealed the district court’s orders granting
Bacharach’s motion to withdraw and dismissing his case.
II. Standards of Review
We review a district court’s decision regarding an attorney’s motion to
withdraw representation for abuse of discretion. See In re Kellogg, 197 F.3d 1116,
1119 (11th Cir. 1999) (bankruptcy appeal); Mekdeci v. Merrell Nat. Lab., 711 F.2d
1510, 1521 (11th Cir. 1983). “Discretion means the district court has a ‘range of
choice, and that its decision will not be disturbed as long as it stays within that
range and is not influenced by any mistake of law.’” Betty K. Agencies, Ltd. v.
M/V Monada, 432 F.3d 1333, 1337 (11th Cir. 2005) (quoting Guideone Elite Ins.
Co. v. Old Cutler Presbyterian Church, Inc., 420 F.3d 1317, 1324 (11th Cir.
2005)).
We also review a dismissal for failure to comply with an order of the district
court for abuse of discretion. See Gratton v. Great Am. Commc’ns, 178 F.3d 1373,
1374 (11th Cir. 1999). Generally, where the litigant has been forewarned,
dismissal for failure to obey a court order is not an abuse of discretion. See Moon
v. Newsome, 863 F.2d 835, 837 (11th Cir. 1989). Furthermore, a dismissal without
prejudice is generally not an abuse of discretion. See Dynes v. Army Air Force
Exch. Serv., 720 F.2d 1495, 1499 (11th Cir. 1983).
III. Discussion
12
Case: 19-10358 Date Filed: 04/23/2020 Page: 13 of 20
A. The District Court Did Not Err in Granting Bacharach’s Motion to Withdraw
We first consider whether the district court abused its discretion in granting
Bacharach leave to withdraw. In the Northern District of Florida, two rules govern
attorney withdrawal: Local Rule 11.1(H) and Florida Bar Rule 4-1.16. Local Rule
11.1(H) permits an attorney who has appeared in a case to withdraw if the court
grants leave to withdraw, provided that the attorney does not move to withdraw
without first giving 14 days’ notice to the client and that the motion sets out the
client’s position on the motion. N.D. Fla. Local R. 11.1(H). Additionally, under
the Rules Regulating the Florida Bar—which govern the conduct of attorneys
admitted to practice in the Northern District of Florida—a lawyer may withdraw
representation if: (1) withdrawal can be accomplished without material adverse
effect on the interests of the client; (2) the client insists upon taking action that the
lawyer considers repugnant, imprudent, or with which the lawyer has a
fundamental disagreement; (3) the client fails substantially to fulfill an obligation
to the lawyer regarding the lawyer’s services and has been given reasonable
warning that the lawyer will withdraw unless the obligation is fulfilled; (4) the
representation will result in an unreasonable financial burden on the lawyer or has
been rendered unreasonably difficult by the client; or (5) other good cause for
withdrawal exists. R. Regulating Fla. Bar 4-1.16(b)(1−5); N.D. Fla. Local R.
11.1(A). In general, withdrawal does not materially affect the client’s interests if
13
Case: 19-10358 Date Filed: 04/23/2020 Page: 14 of 20
the case has not been scheduled for trial and the client has ample time to obtain
new counsel. See Fisher v. State, 248 So. 2d 479, 486 (Fla. 1971). Permission to
withdraw pursuant to Florida Bar Rule 4-1.16, while always within the discretion
of the trial court, is proper if the attorney “can show that the withdrawal will not
prejudice the client or that there is good cause, affecting the relationship between
the lawyer and the client, for the withdrawal.” In re Davis, 258 B.R. 510, 513
(Bankr. M.D. Fla. 2001) (citing Sands v. Moron, 339 So. 2d 307, 307 (Fla. Dist.
Ct. App. 1976)).
Here, the district court did not abuse its discretion by allowing Bacharach to
withdraw because Portnoy’s behavior made it unreasonably difficult for
representation to continue, and Portnoy demanded that Bacharach engage in
objectionable behavior. Portnoy repeatedly asked Bacharach for money and
threatened to use the Florida Bar attorney complaint process as a cudgel to extract
payments. The record shows that, on numerous occasions, Portnoy hounded
Bacharach for financial assistance which Bacharach was ethically barred from
providing. Each time, Bacharach explained that as a member of the Florida Bar, he
was prohibited from advancing or loaning Portnoy money, but suggested charitable
organizations for Bacharach to contact for help. In response, Portnoy called
Bacharach a liar and that stated that perhaps Bacharach “should have to explain to
the Bar why [he] would not help [Portnoy].”
14
Case: 19-10358 Date Filed: 04/23/2020 Page: 15 of 20
Indeed, Portnoy pursued complaints against Portnoy with the Florida Bar.
The record shows that beginning around May 2016 Portnoy repeatedly called the
Florida Bar to complain about Bacharach’s representation of him. He also
complained about Bacharach’s handling of the case to other attorneys. In February
2018, Bacharach learned that Portnoy had made a formal Bar complaint, which the
Florida Bar dismissed on May 2, 2018. And on May 10, 2018—about a week after
the Florida Bar closed the file on that complaint—Portnoy called Bacharach and
again asked for a loan. Yet again Bacharach informed Portnoy that the Bar Rules
prevented him from loaning him money and Portnoy responded that he could
request review of the decision to close his complaint. Portnoy did just that: two
weeks after the May 10, 2018 conversation, Bacharach received a letter from the
Florida Bar that Portnoy had requested review of the decision to close the
complaint.
By Portnoy’s own admissions, he had completely lost trust in Bacharach.
Portnoy stated that Bacharach “thinks that my case is a joke,” and that Bacharach
“ha[s] [t]he Defendant’s interests . . . ‘ahead of’ my interests.” Portnoy even
accused Bacharach of colluding with the VA and the U.S. Attorney’s Office and
distorting the facts of the case. And, at bottom, Portnoy strongly disagreed with
Bacharach’s strategic decisions, including Bacharach’s recommendation to drop
the wrongful death charge following the district court’s show cause order. In the
15
Case: 19-10358 Date Filed: 04/23/2020 Page: 16 of 20
two hearings the district court held regarding Bacharach’s motions to withdraw,
and his written submissions to the court, Portnoy did not dispute any of these facts.
Because our review of the record shows that Portnoy’s actions made
Bacharach’s representation of him untenable and Portnoy pressured Bacharach to
engage in behavior that would violate the rules of the Florida Bar, good cause
existed for Bacharach to withdraw. Moreover, at the time of the withdrawal, this
case was scheduled for trial and the district court afforded Portnoy five months to
obtain counsel. He was therefore not materially affected by the withdrawal. See
Fisher, 248 So. 2d at 486. Thus, Bacharach met the standard for permissive
withdrawal under Florida Bar Rule 4-1.16 and the district court did not abuse its
discretion by allowing him to withdraw. We therefore affirm the district court’s
order granting Bacharach’s motion to withdraw.
B. Portnoy’s Challenge to the District Court’s Dismissal of His Complaint
We next turn to Portnoy’s argument that the district court erred in dismissing
his case because he should have been allowed to proceed pro se as the
representative of his father’s estate. We need not address this issue because
Portnoy waived it by not raising it in his initial brief. See United States v. Higdon,
418 F.3d 1136, 1137 (11th Cir. 2005) (“[N]ew issues not raised in opening briefs
will not be considered by the court.”).
16
Case: 19-10358 Date Filed: 04/23/2020 Page: 17 of 20
In his initial brief on appeal, Portnoy does not make any specific arguments
that the district court erred in dismissing his complaint because he could not
proceed pro se as the representative of an estate, although he generally argues that
“the district court erred.” Instead, he argues that the FWDA is unconstitutional
because it denies certain individuals, such as himself, access to due process and
other constitutional rights. 4 He further argues that that the law’s limitations on
recovery made it impossible for him to secure new counsel following Bacharach’s
withdrawal. The government responds that the district court properly dismissed
the action because plaintiffs suing as representatives of an estate cannot proceed
pro se. Portnoy asserts in his reply brief that he had the right to represent himself
because his personal interests were at stake and therefore the district court erred in
dismissing his case for failure to obtain counsel.
Pro se pleadings are liberally construed and held to less stringent standards
than those drafted by lawyers. Jones v. Fla. Parole Comm’n, 787 F.3d 1105, 1107
(11th Cir. 2015). Nevertheless, a court may not “serve as de facto counsel for a
party” or “rewrite an otherwise deficient pleading in order to sustain an
action.” GJR Invs., Inc. v. Cty. of Escambia, Fla., 132 F.3d 1359, 1369 (11th Cir.
1998), overruled on other grounds as recognized in Randall v. Scott, 610 F.3d 701,
4
The FWDA limits damages to spouses and children of the deceased under the age of 25.
Fla. Stat. Ann. § 768.21.
17
Case: 19-10358 Date Filed: 04/23/2020 Page: 18 of 20
709 (11th Cir. 2010). And in general, a defendant’s pro se status in civil litigation
will not excuse his failure to follow procedural rules. McNeil v. United States, 508
U.S. 106, 113 (1993). Relevant here is the requirement that parties submit all
issues on appeal in their initial briefs. Fed. R. App. P. 28(a)(5); 11th Cir. R. 28-
1(h); United States v. Nealy, 232 F.3d 825, 830 (11th Cir. 2000). Thus, we deem
an argument abandoned where the appellant raises it for the first time in a reply
brief. See United States v. Magluta¸ 418 F.3d 1166, 1185−86 (11th Cir. 2005).
Accordingly, we hold that Portnoy abandoned his argument that the district
court should have allowed him to proceed pro se by raising it for the first time in
his reply brief. Even construing his initial brief liberally, nowhere does Portnoy
object to the district court’s dismissal on the ground that he should have been
allowed to proceed pro se. Instead, Portnoy objects that the FWDA
unconstitutionally limits recovery to the deceased’s spouse and children under the
age of 25. And that limitation, in turn, dissuaded attorneys from taking his case.
In short, in his initial brief, Portnoy attributes the district court’s error to his
inability to find another attorney—not any right to proceed pro se. He claimed a
right to proceed pro se only after the government teed up the issue in its brief. We
therefore do not address this argument.
C. Portnoy’s Constitutional Challenge to the FWDA
18
Case: 19-10358 Date Filed: 04/23/2020 Page: 19 of 20
Portnoy has also waived his constitutional challenge to the FWDA. On
appeal, Portnoy argues that the FWDA is unconstitutional because it limits recovery
to the deceased’s spouse and children under the age of 25.
Arguments raised for the first time on appeal that were not presented in the
district court are generally deemed waived. See Walker v. Jones, 10 F.3d 1569,
1572 (11th Cir. 1994). But we have permitted issues to be raised for
the first time on appeal under five circumstances: (1) the issue “involves a pure
question of law and . . . refusal to consider it would result in a miscarriage of
justice;” (2) “where the appellant raises an objection to an order which he had no
opportunity to raise at the district court level;” (3) “where the interest of substantial
justice is at stake;” (4) “where the proper resolution is beyond any doubt;” or (5)
“if the issue presents significant questions of general impact or of great public
concern.” Access Now, Inc. v. Southwest Airlines Co., 385 F.3d 1324, 1332 (11th
Cir. 2004) (quoting Wright v. Hanna Steel Corp., 270 F.3d 1336, 1342 (11th Cir.
2001)).
Portnoy did not raise his constitutional challenge to the FWDA before the
district court. And on appeal, he fails to present any applicable exceptions to the
general rule that issues raised for the first time on appeal are deemed abandoned.
Accordingly, Portnoy has waived his constitutional argument, and we need not
19
Case: 19-10358 Date Filed: 04/23/2020 Page: 20 of 20
consider it. We therefore affirm the district court’s dismissal without prejudice of
Portnoy’s complaint.
AFFIRMED.
20