“Improperly Filed” Post-Judgment Motion by Non-Lawyer Did Not Toll Filing Deadline for Appeal, Tenth Circuit Holds

In Bunn v. Perdue, No. 19-2138 (10th Cir. July 28, 2020), the court holds that the automatic tolling for the filing of an appeal under Fed. R. App. P. 4(a)(4)(A) does not apply when a post-judgment motion is “improperly filed” by someone other than counsel of record.

Plaintiff, who was represented by counsel, lost his employment-discrimination case against the U.S. Department of Agriculture on summary judgment. Without his counsel either being substituted or withdrawn, plaintiff arranged to have an acquaintance named Rankin who was unlicensed in the relevant court bar (and reportedly not an attorney at all) move on his behalf under Fed. R. Civ. P. 59 to vacate summary judgment. The motion was fashioned as a representative filing for Rankin to act as plaintiff’s “Next Friend” under Fed. R. Civ. P. 17, governing representation of minors and incompetents. The district court struck all post-judgment papers on the ground that plaintiff was already represented in the case, and that Rankin otherwise lacked capacity to file on plaintiff’s behalf.

Fifty-nine days after the district court struck the papers and 87 days after the original entry of judgment, plaintiff – through counsel – filed notice of appeal from both the summary judgment and the striking of the post-judgment motions. (Where one party is the federal government, the filing deadline for an appeal is sixty days.)

The Tenth Circuit holds that the notice of appeal of the summary judgment is untimely and dismisses that part of the appeal. While the timely filing of a Rule 59 motion would ordinarily reset the appeal deadline, with the time to file notice recommencing when the post-judgment motion is denied, here the panel holds that the Rule 59 motion was “improperly filed,” properly struck by the district court, and thus without tolling effect.

The striking of the post-judgment papers is affirmed because (1) “Rankin … was not licensed to practice law in the District of New Mexico,” (2) plaintiff’s “attorneys never withdrew from his case, so [plaintiff] could not proceed pro se,” and (3) plaintiff “could not proceed with … Rankin as his non-attorney representative under Rule 17 because [plaintiff] made no showing of [his own] incompetence.”

Based on that reasoning, the post-judgment papers – being “improperly filed” – had no tolling effect under Rule 4(a)(4)(A) on the sixty-day deadline for filing notice of appeal: “[T]he district court properly struck the motion to vacate, making it a nullity. It therefore could not toll the 60-day appeal window.” Without a timely notice of appeal, therefore, the panel holds that it lacks jurisdiction to rule on the merits of the appeal.