Two Hearts v. United States

OMENM

In the United States Court of F ederal Claims
NQ_ 16_1578 FILED

Filed: February 14, 2017

FEB 1 ll 2017
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>l= U.S. COUF{T OF
* FEDERAL cLAlMs
* Rule of the United States Court
CHAD S- TWO HEARTS» * Of Federal Claims (“RCFC”)
_ _ * 833 (Legal Assistance by
Plamtlff= pro Se’ * Law Students).
v. *
*
THE UNITED STATES, *
*
Defendant. *
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MEMORANDUM OPINION AND ORDER

On December 15, 2016, Plaintiff filed a Motion For Third Paity Representation (“Pl.
Motion”), requesting the court to allow Plaintiff to be represented by Mr. Victor C. Fourstar, Jr., a
non-attorney, under Rule of the United States Court of Federal Clairns (“RCFC”) 83.3.

Plaintiff argues that otherwise he Would not enjoy his rights if he proceeds pro se. Pl. Mot.
at 2. Plaintiff has advised the court that Mr. Fourstar has an interest in pursuing an Associate’s
Degree in Paralegal Studies at the University of Montana. Pl. Mot. App. l (November 18, 2016
letter from the University of Montana, evidencing Mr. Fourstar’s interest in admission, but not that
he is a student in a good standing).

In any event, Plaintift’ s December 15, 2016 Motion does not meet the requirements of Rule
83.3(c) of the United States Court of Federal Clairns.1 In addition, RCFC 83.3 requires that a

' RCFC 83.3(0) provides:

In order to be eligible to make an appearance pursuant to this rule, the law student
must:

(1) be a law student in good standing, enrolled in a law school approved by the
American Bar Association;

(2) have completed legal studies amounting to at least two semesters, or the
equivalent if the school is on some basis other than a semester basis;

(3) have knowledge of the Rules of the United States Comt of Federal Claims, the
Federal Rules of Evidenee, and the Arnerican Bar Association Model Rules of
Professional Conduct;

“supervising attorney” approves the iaw student representation in writing, and that this be
submitted to the Clerk of the Court.2

Plaintiff’s Motion cites Gideon v. Wainwright, 372 U.S. 335 (1963) and Johnson v. Avery,
393 U.S. 483 (1969) as dispositive authority, but those decisions are irrelevant Gideon concerns
the right to counsel in a criminal case under the Sixth Arnendment to the United States
Constitution, and does not apply to Piaintiff’s civil case. See Gideon, 372 U.S. at 344 (holding
that “any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial
unless counsel is provided for him” and “the Fourteenth Amendment requires appointment of
counsel in a state court, just as the Sixth Amendment requires in a federal court”). Johnson
concerned whether state penitentiary regulations barring inmates advising, assisting or otherwise
aiding another to prepare Writs of habeas corpus violated the United States Constitution. See
Johnson, 393 U.S. at 484 (holding that “unless . . . the State provides some reasonable alternative
to assist inmates in the preparation of petitions for post-conviction relief, it may not validly enforce
a regulation . . . barring inmates from furnishing such assistance to other prisoners.”). Id. at 490.

Mr. Fourstar was allegedly released on December 9, 2016 from the Marianna Federal
Correctional Institution and cannot be deemed as an inmate helping another inmate. Pl. Mot. at 4.
Second, Johm'on concerned the remedy of habeas corpus, Which is a right of a person in custody
to determine that the custody violates the Constitution, laws, or treaties of the United States. See

(4) be enrolled for credit in a clinical program at an accredited law school that
maintains malpractice insurance for its activities and conducts its activities under
the direction of a faculty member of such law schooi;

(5) be certified by the dean of the law school as being of good character and
sufficient legal ability, and as being adequately trained, in accordance With
paragraphs (1)-(4) above, to fulfill the responsibilities of a legal intern to both the
client and the court. Such certification must be filed with the clerk and may be
Withdrawn at any time by the dean upon written notice to the clerk;

(6) be certified by the chief judge to practice pursuant to this rule. This certification
may be Withdrawn at any time by the chief judge or, in a given case, by the judge
or special master before whom the law student has entered an appearance, without
notice of hearing and without any showing of cause; and

(7) neither ask for nor receive any fee or compensation of any kind from the client
on Whose behalf service is rendered However, this rule shall not prevent a lawyer,
legal aid bureau, law schooi, or the government from paying compensation to the
eligible law student, nor shall it prevent any of them from making such charges for
its services as may otherwise be proper, nor shall it prevent any clinical program
from receiving otherwise proper fees and expenses under RCFC 54(d)(2).

acre 83.3(¢).

2 RCFC 83.3 provides, in relevant part, “a ‘supervising attorney,’ as defined in this ruie,
has also indicated approval of that appearance in Writing [and] supervising attorney referred to in
this rule shall be deemed the attorney of record.”

to determine that the custody violates the Constitution, iaws, or treaties of the United States. See
28 U.S.C. § 2241(0)(4) (“The Writ of habeas corpus shall not extend to a prisoner unless . . . [h]e
is in custody in violation of the Constitution or laws or treaties of the United States[.]”). Plaintiff
has not filed a habeas corpus petition.

As for fn Re Morales, 2016 VT 85 (Vt. Aug. 5, 2016), that case is a decision of the Supreme
Court of Vermont and is not binding on the United States Court of Federal Claims.

For these reasons, Plaintiff" s December 15, 2016 l\/Iotion for Third Party Representation is
denied.

iris so oRI)EREn. g : `

SUSAN G. BRADEN
Judge