Snyder v. New York State Education Department

SUMMARY ORDER

UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED, AND DECREED that the appeal be and it hereby is DISMISSED.

Marge and Stephen C. Snyder (“the Snyders”), appearing pro se, appeal from a the District Court’s order dismissing their complaint insofar as it set forth claims on behalf of their son, Kalle Snyder. They also appeal from orders instructing them to obtain counsel for their son, denying their motion for appointment of counsel, and denying reconsideration of that order. We hold that this Court lacks jurisdiction to hear the Snyders’ appeal since no final judgment has been entered in this case and the orders are not appealable under the collateral order doctrine.

The Snyders initiated this suit in August 1998, raising claims against defendants on behalf of them son under the Individuals with Disabilities Educational Act, 20 U.S.C. § 1401 et seq., Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, the Americans with Disabilities Act, 42 U.S.C. § 12101 et seq., the Civil Rights Act of 1873, 42 U.S.C. § 1983, and the Family Educational Rights and Privacy Act, 20 U.S.C. § 1232(g).

In November 1998, the magistrate judge held that the Snyders could not proceed pro se on behalf of their son, see Wenger v. Canastota Cent. Sch. Dist., 146 F.3d 123, 124 (2d Cir.1998), and thus ordered the Snyders, within sixty days, to retain counsel, apply for appointment of counsel, or discontinue the action. After the magistrate judge granted them more time, in March 1999, the Snyders moved “to amend/appoint counsel,” asking to proceed pro se in representing their rights as parents and to have the court appoint a guardian ad litem to represent their son. The Snyders claimed they had been unable to obtain counsel, but not for lack of financial resources. In November 1999, the magistrate judge granted the Snyders’ motion to amend their complaint to add themselves as parties, but denied their motion for appointment of counsel (absent proof of an inability to pay) or for a guardian ad litem. The magistrate judge ordered the Snyders to obtain counsel for their son within thirty days or face dismissal of their suit. In January 2000, the magistrate judge denied the Snyders’ request of reconsideration of his order and, subsequently, issued a Report and Recommendation recommending dismissal of the complaint pursuant to Fed.R.Civ.P. 16(f) for failure to comply with the court’s orders. In November 2000, the District Court adopted the Report and Recommendation in a decision and order.

The Snyders filed a notice of appeal on December 5, 2000. They contend that this Court has jurisdiction over their appeal pursuant to the collateral order doctrine because (1) the District Court’s order conclusively determined that they could not pursue counsel for their son; (2) that matter is separate from the merits of the underlying action and, if not immediately appealable, will prevent the Snyders from pursuing their individual claims that are related to those of their son and will lead to a violation of their son’s rights; and (3) the District Court’s order will be unreviewable after final judgment since their son cannot proceed absent counsel. On appeal, the Snyders state plainly that they are not appealing their right to appear pro se on behalf of their son.

A district court’s order is only appealable if it is a final decision under 28 U.S.C. § 1291 or Fed R.Civ.P. 54(b), if it is a certified interlocutory order under 28 U.S.C. § 1292(b), or if it falls within the narrow exception of the collateral order doctrine, see Cohen v. Beneficial Indust. Loan Corp., 337 U.S. 541, 69 S.Ct. 1221, 93 L.Ed. 1528 (1949). “To fit within the collateral order exception, the interlocutory order must: [i] conclusively determine the disputed question, [ii] resolve an important issue completely separate from the merits of the action, and [iii] be effectively unreviewable on appeal from a final judgment.” Whiting v. Lacara, 187 F.3d 317, 320 (2d Cir.1999) (internal quotation marks omitted). In the instant case, we hold that we lack jurisdiction because (1) the order dismissing the Snyders’ claims on behalf of their son would be renewable in an appeal from a final judgment; (2) the order denying a motion for appointment of counsel pursuant to 28 U.S.C. § 1915 is not appeal-able under the collateral order doctrine, see Welch v. Smith, 810 F.2d 40, 42 (2d Cir.1987); and (3) the order denying the appointment of a guardian ad litem would be reviewable on appeal from a final judgment; and (4) the magistrate judge’s order denying reconsideration dealt with non-final orders that were not immediately appealable.

For the reasons set forth above, the appeal is hereby DISMISSED.