GLD-151                                                        NOT PRECEDENTIAL

                       UNITED STATES COURT OF APPEALS
                            FOR THE THIRD CIRCUIT
                                 ___________

                                      No. 12-1112
                                      ___________

                        TERRY FAISON WILLIAMS, as Power
                     of Attorney for her Father, Louis T. Faison, Sr.,
                                                                         Appellants
                                            v.

                          UNITED STATES OF AMERICA
                      ____________________________________

                     On Appeal from the United States District Court
                         for the Middle District of Pennsylvania
                               (D.C. Civ. No. 11-cv-00395)
                      District Judge: Honorable John E. Jones, III
                      ____________________________________

                        Submitted for Possible Summary Action
                   Pursuant to Third Circuit LAR 27.4 and I.O.P. 10.6
                                    March 29, 2012

       Before: FUENTES, GREENAWAY, JR. and NYGAARD, Circuit Judges

                             (Opinion filed: April 20, 2012)
                                      _________

                                        OPINION
                                        _________

PER CURIAM

       Terry Faison Williams appeals pro se from the District Court’s entry of summary

judgment in favor of the United States on a claim that the District Court construed her to

have brought on her father’s behalf. Because the District Court erroneously permitted
Faison Williams to litigate that claim pro se, we will vacate and remand for further

proceedings.

                                              I.

       Faison Williams is the sister of Louis T. Faison, Jr., who died while incarcerated at

USP-Lewisburg. Louis T. Faison, Sr., is their father. On the basis of her brother’s death,

Faison Williams filed (through counsel) a Pennsylvania wrongful death and survivor

action under the Federal Tort Claims Act, 28 U.S.C. §§ 2671-2680, against the United

States. She asserted no claim of her own, but purported to proceed on her father’s behalf

pursuant to a power of attorney.

       The United States filed a motion to dismiss or for summary judgment on various

grounds, including lack of standing. Faison Williams’s counsel then sought leave to

withdraw, which the District Court granted. Thereafter, the District Court permitted

Faison Williams to litigate on behalf of her father pro se. In that capacity, she filed a

brief on the merits in opposition to the United States’ motion. The brief bears only her

own name and signature but, like the complaint, it makes clear that she was proceeding

solely on behalf of her father and asserted no claim of her own. Among other things, she

argued that counsel had erroneously designated her instead of her father as the plaintiff

and that her name should not have appeared in the caption at all.

       On August 5, 2011, the District Court entered summary judgment in the United

States’ favor on the ground that both Faison Williams and her father lack standing under

Pennsylvania law to pursue a wrongful death action. The District Court concluded that
                                              2
only the administrator of Louis Faison, Jr.’s estate had such standing, and that the

administrator (his wife, Veta Faison) had in fact filed a wrongful death action of her own

that was then pending. Faison v. United States, M.D. Pa. Civ. No. 10-cv-02603. (That

action has since settled.)

       After the deadline to appeal passed, Faison Williams filed a motion under Rule

4(a)(6) of the Federal Rules of Appellate Procedure to reopen the appeal period. The

District Court granted the motion, and Faison Williams filed a notice of appeal within the

time permitted. Once again, both the Rule 4(a)(6) motion and the notice of appeal bear

only her signature, although the notice of appeal lists both her and her father as

appellants.

       On January 18, 2012, the Clerk of this Court issued an order notifying the parties

that Faison Williams is not permitted to represent her father pro se and requiring him to

personally sign and return the notice of appeal by February 1, 2012. See Becker v.

Montgomery, 532 U.S. 757, 760 (2001). Louis Faison, Sr., has not complied with that

order, though it appears that he has signed other documents that Faison Williams has

since submitted on appeal. This appeal is presently before us on the Clerk’s listing for

possible summary action, see 3d Cir. LAR 27.4 (2010); 3d Cir. I.O.P. 10.6, and on Faison

Williams’s motions discussed below.

                                             II.

       This appeal raises the threshold issues of whether Faison Williams or Louis

Faison, Sr., or both, are proper parties on appeal and whether this appeal should proceed
                                              3
in the absence of Louis Faison, Sr.’s signature on the notice of appeal or representation

by counsel. We need not resolve these issues, however, because they stem in part from

an error that Faison Williams’s timely notice of appeal gives us jurisdiction under 28

U.S.C. § 1291 to correct. See Osei-Afriyie v. Med. Coll. of Pa., 937 F.2d 876, 880-81

(3d Cir. 1991). Parties may proceed in federal court only pro se or through counsel. See

28 U.S.C. § 1654. Faison Williams’s power of attorney for her father may confer certain

decision-making authority under state law, but it does not permit her to represent him pro

se in federal court. See Osei-Afriyie, 937 F.2d at 882-83 (holding that parent and

guardian could not litigate pro se on behalf of his children, and noting that “‘[i]t goes

without saying that it is not in the interest of minors or incompetents that they be

represented by non-attorneys’”) (citation omitted); see also Estate of Keatinge v. Biddle,

316 F.3d 7, 14 (1st Cir. 2002) (“[T]he holder of a power of attorney is not authorized to

appear pro se on behalf of the grantor.”); Powerserve Int’l, Inc. v. Lavi, 239 F.3d 508,

514 (2d Cir. 2001) (“attorney-in-fact” for daughter not permitted to litigate pro se on her

behalf).

       Thus, the District Court should not have allowed Faison Williams to represent her

father pro se after permitting her counsel to withdraw. The District Court also should not

have reached the merits of her father’s claim in the absence of proper representation. See

Osei-Afriyie, 937 F.2d at 883; cf. Gardner v. Parson, 874 F.2d 131, 141 (3d Cir. 1989)

(reversing dismissal of incompetent plaintiff’s claim and explaining that, “[b]ecause [she]

was without a representative when the court dismissed her claims, and was otherwise
                                              4
unprotected, the court was without authority to reach the merits of those claims”).

       For these reasons, we will vacate the District Court’s judgment and remand for

further proceedings. We leave the appropriate steps on remand to the District Court’s

discretion. Solely by way of example, however, the District Court may wish to consider

revisiting counsel’s request to withdraw, appointing substitute counsel for Faison

Williams, or requiring her to retain substitute counsel under penalty of dismissal of the

action without prejudice to the merits of her father’s claim. Given our ruling that the

District Court should not have reached the merits of that claim, we express no opinion on

the merits ourselves. 1

       Faison Williams has also filed a motion seeking review of a Magistrate Judge’s

recommendation in a second action that she purported to file on her father’s behalf,



1
  We note that the District Court relied on Rule 2202(a) of the Pennsylvania Rules of
Civil Procedure, which provides that only the personal representative of the decedent
may generally bring an action for wrongful death. The District Court did not address
Faison Williams’s argument that her father has statutory standing to recover for his son’s
allegedly wrongful death under Pennsylvania law. See 42 Pa. Cons. Stat. § 8301(b)
(“[T]he right of action created by this section shall exist only for the benefit of the
spouse, children or parents of the deceased[.]”) (emphasis added). The District Court
also did not address the issue of what remedies, if any, Faison Williams’s father may
have under Pennsylvania law or whether the Pennsylvania procedures for obtaining such
remedies apply in federal court. See, e.g., Pa. R. Civ. P. 2206(b) (requiring court to
apportion damages on a wrongful death settlement “upon petition of any party in
interest”). In particular, the District Court did not address whether Faison Williams’s
complaint could or should be construed as an “interested party” petition under Pa. R. Civ.
P. 2206(b) or a request to intervene in the action filed by Veta Faison (M.D. Pa. Civ. No.
10-cv-02603), which has since resulted in a settlement. We do not hold that the District
Court is or was required to address these issues in the context of the present action.
Suffice it to say, however, that the complications raised by these issues are all the more
                                             5
Faison Williams v. United States, M.D. Pa. Civ. No. 12-cv-00064. We decline to

construe the motion as a notice of appeal from that action because we lack jurisdiction to

review the Magistrate Judge’s recommendation directly. Objections to that

recommendation must instead be filed in the District Court. See United States v.

Polishan, 336 F.3d 234, 239, 240 n.3 (3d Cir. 2003). We ordinarily might direct our

Clerk to transfer the motion to the District Court to be treated as an objection to the

Magistrate Judge’s recommendation. It appears, however, that Faison Williams has filed

this motion with the District Court as well. Faison Williams captioned the motion with

the civil action number for the action currently under review and the motion has been

docketed in this action (M.D. Pa. Civ. No. 11-cv-00395), rather than the action in which

she actually challenges the Magistrate Judge’s recommendation (M.D. Pa. Civ. No. 12-

cv-00064). We trust that the District Court will consider Faison Williams’s motion, if

appropriate, in connection with the appropriate action. Of course, enforcing the

requirement that Faison Williams obtain counsel in order to litigate on her father’s behalf

should go a long way toward insuring more orderly proceedings on remand. Faison

Williams’s motions for the appointment of counsel on appeal and for an extension of time

to retain counsel on appeal are denied.




reason to require representation by counsel to protect whatever rights Faison Williams’s
father may have before entering judgment on his claim.
                                              6
