United States v. Lain ( 2019 )

FILED
United States Court of Appeals
UNITED STATES COURT OF APPEALS Tenth Circuit
FOR THE TENTH CIRCUIT July 10, 2019
Elisabeth A. Shumaker
Clerk of Court
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 19-8012
v. (D.C. No. 2:17-CV-00113-ABJ)
(D. Wyo.)
ROBERT F. LAIN; AMELIA LAIN;
SEPTEMBER LIBERTY TRUST,
Defendants.
DOUGLAS J. CARPA, TRUSTEE,
Movant-Appellant.
ORDER AND JUDGMENT *
Before MATHESON, MCKAY, and BACHARACH, Circuit Judges.
This appeal arises from an action to enforce federal tax liens and sell
real property. The defendant, September Liberty Trust, purportedly holds
this property in trust. The movant-appellant, Mr. Douglas Carpa, moved to
*
Oral argument would not materially help us to decide this appeal, so
we have decided the appeal based on the appellate briefs and the record on
appeal. See Fed. R. App. P. 34(a)(2); 10th Cir. R. 34.1(G).
This order and judgment does not constitute binding precedent except
under the doctrines of law of the case, res judicata, and collateral estoppel.
But the order and judgment may be cited for its persuasive value if
otherwise appropriate. Fed. R. App. P. 32.1(a); 10th Cir. R. 32.1(A).
intervene as a matter of right under Fed. R. Civ. P. 24(a), seeking to
represent September Liberty Trust pro se as its trustee. 1 Mr. Carpa also
moved to dismiss the claims against September Liberty Trust. The district
court denied Mr. Carpa’s motions, concluding that a non-attorney cannot
represent a trust pro se in federal court.
Mr. Carpa appeals, arguing that denying him the right to intervene
pro se violates his right to due process. The government requested leave to
file a motion to dismiss the appeal out of time. We grant leave and sustain
the motion to dismiss.
I. Leave to File a Motion to Dismiss an Appeal Out of Time
Absent good cause, a motion to dismiss an appeal is due fourteen
days from the notice of appeal. 10th Cir. R. 27.3(A)(3)(a). The government
missed this deadline by thirteen days, but we exercise our discretion and
find good cause to file the motion out of time. Good cause stems from the
fact (discussed below) that third parties could be adversely affected by an
order allowing Mr. Carpa to represent the trust. See Zanecki v. Health All.
Plan of Detroit, 576 F. App’x 594, 595 (6th Cir. 2014) (unpublished) (per
curiam) (“The rule against non-lawyer representation ‘protects the rights of
those before the court’ by preventing an ill-equipped layperson from
1
Like the district court, we assume the truth of Mr. Carpa’s allegation
that he is a trustee of September Liberty Trust. See R. at 62.
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squandering the rights of the party he purports to represent.” (quoting
Myers v. Loudoun Cnty. Pub. Sch., 418 F.3d 395, 400 (4th Cir. 2005))). In
light of our finding of good cause, we grant leave to file the motion to
dismiss out of time.
II. Dismissal of the Appeal
We also grant the motion to dismiss.
Federal law authorizes parties to “plead and conduct their own cases
personally or by counsel.” 28 U.S.C. § 1654 (emphasis added). Although
individuals may represent their own personal interests without an attorney,
artificial entities may appear in court only through licensed counsel. See
Rowland v. Cal. Men’s Colony, Unit II Men’s Advisory Council, 506 U.S.
194, 202 (1993) (noting the longstanding rule that corporations must be
represented by licensed counsel and holding that this rule “applies equally
to all artificial entities”); Harrison v. Wahatoyas, L.L.C., 253 F.3d 552,
556 (10th Cir. 2001) (noting that corporations and business entities cannot
be represented in court “through a non-attorney corporate officer appearing
pro se”).
Trusts are artificial entities that exist independently of their trustee
or trustees. Conagra Foods v. Americold Logistics, 776 F.3d 1175, 1176
(10th Cir. 2015), aff’d sub nom., 136 S. Ct. 1012 (2016). So if the trustee
is not a licensed attorney, he or she cannot represent the trust. See
Knoefler v. United Bank of Bismarck, 20 F.3d 347, 348 (8th Cir. 1994) (“A
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nonlawyer, such as these purported ‘trustee(s) pro se’ has no right to
represent another entity, i.e., a trust, in a court of the United States.”).
Mr. Carpa is not a licensed attorney. He can certainly appear pro se
on his own behalf. But he is not purporting to advocate on behalf of his
own interest; he is instead purporting to represent the interests of a
separate entity (the trust itself). He cannot represent the trust’s interests
because he lacks the authority to practice law, and appealing on behalf of a
separate entity involves the practice of law.
Rather than seek counsel, Mr. Carpa argues that he has a right to
prosecute the appeal for the trust based on
 various international treaties and agreements,
 the Citizens Protection Act (28 U.S.C. § 530B), and
 Executive Order 13107.
Mr. Carpa primarily focuses on treaty provisions guaranteeing equal
protection to those suffering discrimination, arguing that international
authorities supersede federal statutes and procedural rules. Mr. Carpa’s
cited authorities are inapplicable and do not undermine the basic principle
limiting the practice of law to licensed attorneys.
Mr. Carpa also argues that we are preventing him from fulfilling his
legal duty to defend the trust. But fiduciary duties do not entitle a trustee
to practice law. See C.E. Pope Equity Tr. v. United States, 818 F.2d 696,
697–98 (9th Cir. 1987) (“[A trustee] may not claim that his status as
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trustee includes the right to present arguments pro se in federal court.”). If
Mr. Carpa believes that he must represent the trust in court, he must
engage a licensed attorney to undertake the representation.
* * *
Mr. Carpa can act pro se in representing himself. But he is not a
licensed attorney, so he cannot prosecute the appeal for another party. The
trust is a separate party, so Mr. Carpa needs a licensed attorney to
represent the trust in the appeal. Given the absence of a licensed attorney,
we grant the government’s motion to dismiss this appeal.
Entered for the Court
Robert E. Bacharach
Circuit Judge
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