Bunn v. Perdue

FILED
United States Court of Appeals
PUBLISH Tenth Circuit

UNITED STATES COURT OF APPEALS July 28, 2020

Christopher M. Wolpert
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________

VIRGIL BUNN,

Plaintiff - Appellant,

v.
No. 19-2138
SONNY PERDUE, as Secretary, United
States Department of Agriculture,

Defendant - Appellee.
_________________________________

Appeal from the United States District Court
for the District of New Mexico
(D.C. No. 1:17-CV-01064-LF-JFR)
_________________________________

Submitted on the briefs:*

Anthony Spratley, Albuquerque, New Mexico, for Plaintiff – Appellant.

John C. Anderson, U.S. Attorney, and Christopher F. Jeu, Assistant U.S. Attorney, U.S.
Department of Justice, Albuquerque, New Mexico, for Defendant – Appellee.
_________________________________

Before BRISCOE, MURPHY, and MATHESON, Circuit Judges.
_________________________________

*
After examining the briefs and appellate record, this panel has determined
unanimously that oral argument would not materially assist in the determination of
this appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G). The case is therefore
ordered submitted without oral argument.
MATHESON, Circuit Judge.
_________________________________

This appeal arises out of an employment discrimination dispute between Virgil

Bunn and the United States Department of Agriculture (“USDA”). Mr. Bunn appeals

the district court’s order granting summary judgment to USDA Secretary Sonny

Perdue and its order striking Mr. Bunn’s motion to vacate the summary judgment

order. Exercising jurisdiction under 28 U.S.C. § 1291, we (1) dismiss Mr. Bunn’s

appeal of the summary judgment order as untimely and (2) affirm the court’s order to

strike Mr. Bunn’s motion to vacate.

I. BACKGROUND

A. Factual and Procedural Background1

Mr. Bunn’s Employment History

On January 31, 2011, Mr. Bunn was hired for a one-year probationary period

as a human resources assistant at the United States Forest Service’s (“USFS”)

Albuquerque Service Center.2 Beginning in October 2011, Mr. Bunn’s supervisor

became concerned about his job performance. After his supervisor asked a colleague

to oversee Mr. Bunn’s work, Mr. Bunn complained to his supervisor about the

colleague’s comments to him. Mr. Bunn later contacted USFS’s Equal Employment

1
We rely on the parties’ undisputed material facts for the factual background.
See Suppl. App. at 3-9, 163-64.
2
The USFS is an agency within the USDA.

2
Opportunity (“EEO”) Counselor Office about these comments. On January 6, 2012,

Mr. Bunn was fired.

Agency Action

Mr. Bunn filed an EEO complaint with the United States Equal Employment

Opportunity Commission (“EEOC”). He alleged harassment, a hostile work

environment, and retaliation.3 An EEOC administrative judge dismissed the suit,

granting summary judgment to the agency on all claims. The USDA’s Office of

Adjudication issued a final order implementing the EEOC’s decision. Mr. Bunn

appealed. The Office of Federal Operations affirmed the USDA’s final decision.

District Court

Mr. Bunn sued Secretary Perdue in his official capacity in the District of New

Mexico. He alleged that the USDA retaliated against him for his complaints in

violation of 42 U.S.C. § 2000E-3(A), discriminated against him based on his age in

violation of 42 U.S.C. § 1983, and promoted a hostile work environment in violation

of 42 U.S.C. § 1983. The Secretary moved for summary judgment, which the district

court granted on all claims. The court entered final judgment on June 3, 2019.

On June 27, 2019, Mr. Bunn moved for William A. Rankin, an apparent

nonlawyer, to act as his representative or “Next Friend” under Federal Rule of Civil

3
Mr. Bunn also alleged additional claims, including that he did not receive
assistance from union representatives. He did not appeal the dismissal of his union-
related claims to the Office of Federal Operations.

3
Procedure 17. See Dist. Ct. Doc. 58, 61.4 Mr. Bunn’s attorneys had not withdrawn.

Mr. Rankin moved on Mr. Bunn’s behalf to vacate the district court’s summary

judgment order. See Suppl. App. at 267-306.5

On July 1, 2019, the district court denied Mr. Bunn’s motion to proceed with

Mr. Rankin as his representative under Rule 17. App. at 73, 75. It also struck Mr.

Rankin’s motion to vacate as “improperly filed.” Id. at 75. The court explained:

Mr. Rankin seeks to represent Mr. Bunn, but Mr. Rankin is
not licensed to practice law in the District of New Mexico.
Indeed, there is no indication that Mr. Rankin is an
attorney, licensed to practice law anywhere in the country.
Mr. Rankin cannot represent Mr. Bunn in this case without
being represented by counsel himself. Further, Mr. Bunn
currently is represented by attorneys Jensen Wallace and
Anthony Spratley of the Genus Law Group. . . . The
attorneys from the Genus Law Group have not withdrawn
their representation of Mr. Bunn or entered an appearance
on behalf of Mr. Rankin. Under these circumstances, Mr.

4
Mr. Bunn on his own submitted an affidavit “asking the court to allow Mr.
William A. Rankin to represent [him] . . . [under] Rule 17.” Dist. Ct. Doc. 58 at 1.
Mr. Rankin filed and signed the “Motion for Rule 17, Next Friend.” Dist. Ct.
Doc. 61 at 1, 5.

Some of the relevant post-judgment filings in district court, such as this one,
were not included in the record on appeal, but they are accessible from the district
court docket. We may therefore take judicial notice of the filings. See United States
v. Smalls, 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recognizing a court may take
judicial notice of docket information from another court); Fed. R. Evid. 201(b)(2).
5
We interpret this motion to vacate as a motion under Federal Rule of Civil
Procedure 59(e) because it sought to alter or amend the judgment. See Yost v. Stout,
607 F.3d 1239, 1243 (10th Cir. 2010) (“Where [a] motion requests a substantive
change in the district court’s judgment or otherwise questions its substantive
correctness, the motion is a Rule 59 motion, regardless of its label.”). The motion
was timely filed within 28 days after the district court’s entry of final judgment. See
Fed. R. Civ. P. 59(e).

4
 Bunn cannot proceed pro se, and Mr. Rankin cannot
proceed as his representative. Consequently, all of the
motions and papers filed by Mr. Bunn and those filed by
Mr. Rankin on behalf of Mr. Bunn, are improperly filed
and will be stricken.

Id. at 74-75 (footnote omitted).

Mr. Bunn’s attorney, Anthony Spratley of the Genus Law Group, filed a notice

of appeal on August 29, 2019, challenging the district court’s final judgment and its

order striking the motion to vacate. Suppl. App. at 318.6

Time Time Elapsed
Date Filing Elapsed Since Order
Since Final Striking
Judgment Motion to
Vacate
June 3, 2019 District court grants summary N/A N/A
judgment and issues final judgment
June 27, 2019 Mr. Rankin files a motion to vacate 24 days N/A
on behalf of Mr. Bunn
July 1, 2019 District court strikes the motion to 28 days N/A
vacate
August 29, 2019 Mr. Bunn appeals 87 days 59 days

B. Legal Background

We provide legal background on (1) timely appealing, (2) tolling the time for

appeals, (3) legal representation for filing motions, and (4) striking filings.

Notice of Appeal

The Supreme Court has “ma[d]e clear that the timely filing of a notice of

appeal in a civil case is a jurisdictional requirement.” Bowles v. Russell, 551 U.S.

6
Mr. Spratley continues to represent Mr. Bunn on appeal.

5
205, 214 (2007); see Vanderwerf v. SmithKline Beecham Corp., 603 F.3d 842, 845

(10th Cir. 2010) (“We strictly construe statutes conferring jurisdiction. Compliance

with filing requirements is mandatory and jurisdictional.” (citations and quotations

omitted)). “As we have long held, when an appeal has not been prosecuted in the

manner directed, within the time limited by the acts of Congress, it must be dismissed

for want of jurisdiction.” Bowles, 551 U.S. at 213 (quotations omitted).7

Under 28 U.S.C. § 2107, the time to file a notice of appeal in a civil case

“shall be 60 days” from “the entry of . . . judgment, order[,] or decree” “if one of the

parties is a United States agency . . . [or] officer . . . sued in an official capacity.”

“Rule 4 of the Federal Rules of Appellate Procedure carries [28 U.S.C.] § 2107 into

practice.” Bowles, 551 U.S. at 208; see Fed. R. App. P. 4(a)(1)(B)(ii)-(iii).8

We “routinely and uniformly dismiss untimely appeals for lack of

jurisdiction.” Bowles, 551 U.S. at 210; see, e.g., Ford v. McKinney, No. 18-3256,

7
“[A] provision governing the time to appeal in a civil action qualifies as
jurisdictional only if Congress sets the time.” Hamer v. Neighborhood Housing
Servs. of Chic., 138 S. Ct. 13, 17 (2017). “A time limit not prescribed by Congress
ranks as a mandatory claim-processing rule . . . . Mandatory claim-processing rules
are less stern. If properly invoked, mandatory claim-processing rules must be
enforced, but they may be waived or forfeited.” Id.; see United States v. Garduno,
506 F.3d 1287, 1290-91 (10th Cir. 2007) (Federal “Rules [of Appellate Procedure]
4(b)(1)(A) and 4(b)(4), which govern appeals from defendants in criminal trials, do
not have statutory grounding. . . . This court . . . hold[s] that Rules 4(b)(1)(A) and
4(b)(4) are inflexible claim-processing rules . . . .” (quotations omitted)).
8
Under Rule 4, a party must file a notice of appeal for a civil case “within 60
days after entry of the judgment or order appealed from if one of the parties is . . . a
United States agency . . . [or] officer . . . sued in an official capacity.” Fed. R. App.
P. 4(a)(1)(B)(ii)-(iii).

6
2019 WL 2455507, at *2 (10th Cir. Feb. 6, 2019) (unpublished); McElhaney v. Bear,

No. 18-7044, 2018 WL 7814406, at *1 (10th Cir. Oct. 9, 2018) (unpublished);

Lundahl v. Am. Bankers Ins. Co., 610 F. App’x 734, 736 (10th Cir. 2015)

(unpublished); Alva v. Teen Help, 469 F.3d 946, 947 (10th Cir. 2006).9

Tolling Time Requirement

“If a party files [certain post-judgment motions] in the district court[,] . . . the

time to file an appeal runs for all parties from the entry of the order disposing of the

last such remaining motion.” Fed. R. App. P. 4(a)(4)(A); see Vanderwerf, 603 F.3d

at 846 (“The timely filing of a Rule 59 motion . . . suspends the . . . time clock for

filing a notice of appeal, and the time to file an appeal runs from the time the district

court enters an order disposing of the Rule 59 motion.”).

Improperly filed post-judgment motions that have been struck do not toll the

time to file a notice of appeal under Rule 4. See Fox v. Noram Energy Corp., No. 98-

6141, 1999 WL 961226, at *2-4 (10th Cir. Oct. 21, 1999) (unpublished) (determining

“the time period for filing a notice of appeal of the underlying summary judgment

motion was not tolled” where the district court struck the plaintiffs’ Rule 59(e)

motion for violating local rules); Air Line Pilots Ass’n v. Precision Valley Aviation,

Inc., 26 F.3d 220, 223-25 (1st Cir. 1994) (holding a “noncompliant” Rule 59(e)

9
Although not precedential, we find the reasoning of the unpublished
decisions cited in this opinion instructive. See 10th Cir. R. 32.1 (“Unpublished
decisions are not precedential, but may be cited for their persuasive value.”); see
also Fed. R. App. P. 32.1.

7
motion that violated local rules did not toll the appeal period because it was a

“nullity”).10

Representation

“A litigant may bring his own claims to federal court without counsel, but not

the claims of others.” Fymbo v. State Farm Fire & Cas. Co., 213 F.3d 1320, 1321

(10th Cir. 2000); accord Adams ex rel. D.J.W. v. Astrue, 659 F.3d 1297, 1299 (10th Cir.

2011) (“The right to proceed pro se in a civil action in federal court is guaranteed by

28 U.S.C. § 1654. Because pro se means to appear for one’s self, however, a person may

not appear on another person’s behalf in the other’s cause[.]” (brackets and quotations

omitted)).

When individual parties “have the assistance of counsel, courts need not consider

any filings made pro se.” United States v. Sandoval-De Lao, 283 F. App’x 621, 625

(10th Cir. 2008) (unpublished) (upholding district court’s refusal to consider defendant’s

pro se motion for sentence reconsideration where he was represented by counsel); see

United States v. Wright, 370 F. App’x 906, 908 (10th Cir. 2010) (unpublished)

(“[C]ourts have discretion to accept or deny pro se filings made by represented

10
See also Fitzpatrick v. Monday, 549 F. App’x 734, 738-39 (10th Cir. 2013)
(unpublished) (holding “statutory tolling [was] not appropriate [where] . . . [state
court] struck” a defendant’s filing); Troutt v. Jones, No. 07-1062, 2008 WL 490614,
at *8 (W.D. Okla. Feb. 21, 2008) (same); but see Carlile v. Conoco, Inc., 23 F. App’x
963, at *2 (10th Cir. 2001) (unpublished) (“We decline to hold that a party who
successfully protected his rights must forfeit them in favor of a rigid reading of the
rules.”).

8
litigants.”); United States v. Miles, 572 F.3d 832, 837-38 (10th Cir. 2009) (upholding

district court’s decision to strike pro se motions because defendant was “represented

by counsel”); Nato Indian Nation v. Utah, 76 F. App’x 854, 856-57 (10th Cir. 2003)

(unpublished) (striking a docketing statement filed by a non-lawyer who was not

entitled to represent “a corporation, other business entity, or non-profit

organization”).

Under the District of New Mexico’s Local Rule of Civil Procedure 83.4,

“[t]o participate in a pending proceeding, an attorney must enter an appearance or

obtain leave of the Court to sign and file any pleading, motion, or other document.”

D.N.M.LR-Civ 83.4.11 “A party who is represented by an attorney may not

personally make any filings, other than a notice of appeal, or represent himself or

herself unless otherwise ordered.” D.N.M.LR-Civ. 83.5.

Under the Federal Rule of Civil Procedure 17(c), a “representative[] may sue

or defend on behalf of a minor or an incompetent person.” Fed. R. Civ. P. 17(c)(1).

“Rule 17(b) provides that issues of capacity are determined by the law of the

individual’s domicile.” Esposito v. United States, 368 F.3d 1271, 1273 (10th Cir.

2004). “Based on the law of New Mexico, the appointment of a guardian . . . is no

light or offhand task. . . . [M]ore is required than the submission of an affidavit . . . .”

11
Under local rules, the attorney either (a) must be “admitted to the bar of this
court” in accordance with D.N.M.LR-Civ 83.2, or (b) “must associate with a member
of the Federal Bar” in accordance with D.N.M.LR-Civ 83.3. See D.N.M.LR-Civ
83.4(a).

9
Romero v. Bradford, No. 08-1055, 2010 WL 11619192, *11 (D.N.M. Sept. 30, 2010);

see N.M. Stat. Ann. § 45-5-303 (describing process for “appointment of a guardian of

an incapacitated person”).

Striking Filings

“[D]istrict courts are afforded great discretion regarding control of the docket

and parties.” United States v. Orozco, 916 F.3d 919, 925 (10th Cir. 2019) (quotations

omitted). Federal Rule of Civil Procedure 12(f) governs what a “court may strike

from a pleading.” Ysai v. N.M. Judicial Standard Com’n, 616 F. Supp. 2d 1176,

1184 (D.N.M. 2009) (quotations omitted); see Fed. R. Civ. P. 12(f) (“The court may

strike from a pleading . . . any redundant, immaterial, impertinent, or scandalous

matter . . . on its own.”). “Generally, . . . motions, briefs, and memoranda may not be

attacked by a motion to strike.” Ysai, 616 F. Supp. 2d at 1184.

“The exception to this principle is that a [c]ourt may choose to strike a filing

that is not allowed by local rule . . . .” Id. (quotations omitted); see Bustillo v. Hawk,

44 F. App’x 396, 400-01 (10th Cir. 2002) (unpublished) (upholding district court’s

decision to strike filing based on local rules); In re Hopkins, No. 98-1186, 1998 WL

704710, at *3 n.6 (10th Cir. Oct. 5, 1998) (unpublished) (noting “it was well within

the discretion of the district court to strike” briefs that did not comply with local

rules).12

12
See also Jones v. United Space All., LLC, 170 F. App’x 52, 57 (11th Cir.
2006) (unpublished) (holding district court did not abuse its discretion in granting a
motion to strike based on local rules); Leatherwood v. Braggs, No. 19-1140, 2020
10
 When courts strike a filing as improperly filed, it becomes “a nullity.”

Synnestvedt v. Astrue, No. 09-443, 2010 WL 125649, *1 n.3 (W.D. Okla. Jan. 7,

2010); see Habyawmana v. Kagame, No. 10-437, 2011 WL 13113322, *1 n.1 (W.D.

Okla. 2011) (noting an “improperly filed” motion “is, therefore, treated as a legal

nullity”).

II. DISCUSSION

We dismiss Mr. Bunn’s appeal of the summary judgment order as untimely

and affirm the court’s order to strike Mr. Bunn’s motion to vacate. Because the

timeliness of Mr. Bunn’s appeal of the summary judgment order depends on our

analysis of the order striking his motion to vacate, we first address (A) his challenge

to the district court’s order striking his motion to vacate and then address (B) his

challenge to the summary judgment order.

A. Order to Strike Motion to Vacate

We affirm the district court’s order to strike Mr. Bunn’s motion to vacate.13

Mr. Bunn waived a challenge to the order by failing to raise any argument in his

opening brief. See Aplt. Br. at 1-21; Sawyers v. Norton, ___ F.3d ___, 2020 WL

3424927, at *11 (10th Cir. 2020) (“Issues not raised in the opening brief are deemed

WL 3470310, at *3 (W.D. Okla. Jun. 25, 2020) (noting it was within “court’s power
to strike [a filing] for noncompliance with the [local] rules”).
13
On August 29, 2019, Mr. Bunn timely appealed the district court’s July 1,
2019 order to strike his motion to vacate within the 60-day window required by
Rule 4. See Fed. R. App. P. 4(a)(1)(B)(iii).

11
abandoned or waived.” (quotations omitted)); United States v. Akers, 384 F. App’x

758, at *2 (10th Cir. 2010) (unpublished) (dismissing timely challenge as “waived”

where issue in notice of appeal was “not address[ed] . . . in [appealing party’s]

brief”).

Even if Mr. Bunn could challenge the order to strike based on his response to

Secretary Perdue’s motion to dismiss, he would fail. See Doc. 10682645 at 1-5. He

has not shown the district court abused its discretion. See Neely v. Ortiz, 241 F.

App’x 474, 477 (10th Cir. 2007) (unpublished) (“[W]e review the order to strike for

abuse of discretion.”); see also SEC v. Smart, 678 F.3d 850, 855 (10th Cir. 2012)

(reviewing district court’s decision to strike declarations for abuse of discretion);

McInnis v. Fairfield Cmtys., Inc., 458 F.3d 1129, 1147 (10th Cir. 2006) (“We review

a district court’s application of its local rules for abuse of discretion.”).

First, Mr. Rankin, who was not licensed to practice law in the District of New

Mexico, filed the motion. See D.N.M.LR-Civ 83.2, 83.3, 83.4. As noted by the

district court, Mr. Rankin’s filings do not indicate he is a licensed attorney in any

jurisdiction. See App. at 74. Second, Mr. Bunn’s attorneys never withdrew from his

case, so he could not proceed pro se. See D.N.M.LR-Civ. 83.5; see also Fymbo, 213

F.3d at 121; Miles, 572 F.3d at 837-38. Third, Mr. Bunn could not proceed with Mr.

Rankin as his non-attorney representative under Rule 17 because Mr. Bunn made no

showing of incompetence. See Fed. R. Civ. P. 17(c); N.M. Stat. Ann. § 45-5-303.

12
 We therefore affirm the district court’s order to strike Mr. Bunn’s motion to

vacate under the local rules of the District of New Mexico. See Ysai, 616 F. Supp.

at 1184; In re Hopkins, 1998 WL 704710 at *3 n.6.14

B. Summary Judgment Order

We grant Secretary Perdue’s motion to dismiss Mr. Bunn’s challenge to the

district court’s summary judgment order as untimely. Doc. 10678128 at 1-8; see

Aplee. Br. at 14-17. Mr. Bunn, “the party claiming appellate jurisdiction[,] bears the

burden of establishing our subject-matter jurisdiction.” United States v. Ceballos-

Martinez, 387 F.3d 1140, 1143 (10th Cir. 2004). Because “[t]his Court can exercise

jurisdiction only if a notice of appeal is timely filed,” Allender v. Raytheon Aircraft

Co., 439 F.3d 1236, 1239 (10th Cir. 2006); see Bowles, 551 U.S. at 214, we dismiss

the appeal of this order for lack of jurisdiction.

Mr. Bunn did not timely appeal the district court’s order granting summary

judgment. The court issued its final judgment on June 3, 2019. App. at 48-72. Mr.

14
Mr. Rankin filed several other post-judgment documents on Mr. Bunn’s
behalf. See Dist. Ct. Doc. 59, 60, 64, 66, 67, 69, 71, 73, 74. The district court struck
them all as improper. See App. at 73-75 (striking Dist. Ct. Doc. 59, 60, 64), 76-77
(striking Dist. Ct. Doc. 66, 67, 69), 78 (striking Dist. Ct. Doc. 71), 79-80 (striking
Dist. Ct. Doc. 73, 74). None of these filings could have tolled the time for Mr. Bunn
to file a notice of appeal under Rule 4. See Fed. R. App. P. 4(a)(4)(A) (listing the
kinds of timely filings that toll “the time to file an appeal”). Most of these
documents were not the kinds of filings that toll the time to appeal. See Dist. Ct.
Doc. 59, 60, 64, 66, 67, 71, 73, 74. For similar reasons stated regarding his motion to
vacate, the untimely second motion to reconsider would not have tolled the time for
Mr. Bunn to file a notice of appeal. See Dist. Ct. Doc. 69; see also Bryant v.
Parsons, 399 F. App’x 322, 323 (10th Cir. 2010) (unpublished) (holding untimely
post-judgment motions do not toll the time for filing a notice of appeal).

13
Bunn filed a notice of appeal on August 29, 2019. Suppl. App. at 318. Because Mr.

Bunn sued a United States officer, Secretary Perdue, in his official capacity, Mr.

Bunn had 60 days to file a notice of appeal. Fed. R. App. P. 4(a)(1)(B)(iii). He

failed to do so, filing his appeal 87 days after the final judgment.

Mr. Bunn argues his notice of appeal was timely because he tolled the 60-day

window to appeal with his motion to vacate, which was filed on June 27, 2019. See

Doc. 10682645 at 5.15 He argues the district court should not have struck his motion

because “striking pleadings are usually disfavored.” Id. at 2. He adds that “the court

did not show how the Appellee was prejudiced by the improper filing of the motion.”

Id. at 4.

But, as explained above, the district court properly struck the motion to vacate,

making it a nullity. It therefore could not toll the 60-day appeal window. Air Line

Pilots Ass’n, 26 F.3d at 225; see Noram Energy Corp., 1999 WL 961226, at *2-4.

Mr. Bunn cites no authority showing that an improperly filed and struck post-

judgment motion tolls the 60-day appeal period. See Doc. 10682645 at 1-5; Aplt. Br.

at 3. Because Mr. Bunn’s notice of appeal was untimely, we lack jurisdiction to

15
In his response to the Secretary’s motion to dismiss, Mr. Bunn states he filed
the motion to vacate on June 28, 2019. See Doc. 10682645 at 5. The district court’s
docket lists the motion as filed on June 27, 2019. See Suppl. App. at 267. The filing
was stamped with the date June 27, 2019. Id. We use the date from the district
court’s docket. The outcome here is the same under either date.

14
consider his appeal of the district court’s order granting summary judgment. See

Bowles, 551 U.S. at 214.16

III. CONCLUSION

Because Mr. Bunn’s appeal of the summary judgment order was untimely, we

lack jurisdiction to consider it and dismiss that part of his appeal. We affirm the

district court’s order to strike Mr. Bunn’s motion to vacate.

16
After the court struck his motion to vacate on July 1, 2019, Mr. Bunn’s
attorneys had ample opportunity to refile a motion to vacate. They also had 32 days
to file a timely notice of appeal to challenge the summary judgment order. See Fed.
R. App. P. 4(a)(1)(B)(iii).

15