PUBLISH UNITED STATES COURT OF APPEALS FOR THE TENTH CIRCUIT

________________ _________________ VIRGIL BUNN, Plaintiff - Appellant,

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

________________ _________________ 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. Attorn ey, and Christopher F. Jeu, A ssistant 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 appella te record, this pa nel has determined unanimously that oral argument would not ma terially 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. FILED United States Court of Appeals Tenth Circuit 

### July 28, 2020 Christopher M. Wolpert Clerk of Court2 MATHESON , Circuit Judge.

________________ _________________ This appeal arises out of an employmen t discrimination dispute between Virgil Bunn and the United States Department of Agriculture (“USDA”). Mr. Bunn appeals the district court’s order granting su mmary judgment to USDA Secretary Sonny Perdue and its order striki ng Mr. Bunn’s motion to v acate 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 Background 1 Mr. Bunn’s Employment History On January 31, 2011, Mr. Bunn was hi red for a one-year probationary period as a human resources assist ant 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 comp lained to his supervisor about the colleague’s comments to hi m. Mr. Bunn later contac ted USFS’s Equal Employment

1 We rely on the parties’ undisputed mate rial facts for the factual background. See Suppl. App. at 3-9, 163-64.

2 The USFS is an agen cy within the USDA.3 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 clai ms. The USDA’s Office of Adjudication issued a final order implem enting the EEOC’s decision. Mr. Bunn appealed. The Office of Fe deral Operations affirmed th e USDA’s final decision. District Court Mr. Bunn sued Secretary Perdue in his offi cial capacity in the District of New Mexico. He alleged that the USDA retalia ted against him for his complaints in violation of 42 U.S.C. § 200 0E-3(A), discriminated agains t 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 ente red 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 clai ms, including that he did not receive assistance from union representa tives. He did not appeal the dismissal of his unionrelated claims to the Office of Federal Operations.4 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 de nied 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 la w anywhere in the country. Mr. Rankin cannot represent Mr. Bunn in this case without being represented by counsel hi mself. Further, Mr. Bunn currently is represented by a ttorneys Jensen Wallace and Anthony Spratley of the Ge nus Law Group. . . . The attorneys from the Genus Law Group have not withdrawn their representation of Mr. B unn or entered an appearance on behalf of Mr. Rankin. U nder these circumstances, Mr.

4 Mr. Bunn on his own submitted an affida vit “asking the court to allow Mr. William A. Rankin to represent [him] . . . [u nder] Rule 17.” Dist. Ct. Doc. 58 at 1. Mr. Rankin filed and signed the “Motion fo r Rule 17, Next Friend.” Dist. Ct. Doc. 61 at 1, 5. Some of the relevant post-j udgment 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 ta ke judicial notic e of the filings. See United States v. Smalls , 605 F.3d 765, 768 n.2 (10th Cir. 2010) (recogn izing a court may take judicial notice of docket information from a nother court); Fed. R. Evid. 201(b)(2).

5 We interpret this moti on to vacate as a motion unde r 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 Ci r. 2010) (“Where [a] moti on requests a substantive change in the district court’s judgment or otherwise questi ons its substantive correctness, the motion is a Ru le 59 motion, regardless of its label.”). The motion was timely filed within 28 days after the di strict court’s entry of final judgment. See Fed. R. Civ. P. 59(e).5 Bunn cannot proceed pro se, and Mr. Rankin cannot proceed as his repre sentative. 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 Grou p, filed a notice of appeal on August 29, 2019, challenging the district c ourt’s final judgment and its order striking the motion to v acate. Suppl. App. at 318. 6

Date Filing Time Elapsed Since Final Judgment Time Elapsed Since Order Striking Motion to

Vacate June 3, 2019 District court grants summary judgment and issues final judgment N/A N/A June 27, 2019 Mr. Rankin files a motion to vacate on behalf of Mr. Bunn 24 days N/A July 1, 2019 District c ourt strikes the motion to vacate 28 days N/A August 29, 2019 Mr. Bunn appeals 87 days 59 days

B. Legal Background We provide legal background on (1) tim ely 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 th at 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 rep resent Mr. Bunn on appeal.6 205, 214 (2007); see Vanderwerf v. Sm ithKline Beecham Corp. , 603 F.3d 842, 845 (10th Cir. 2010) (“We stric tly construe statutes confe rring jurisdiction. Compliance with filing requirements is ma ndatory 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 th e 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 offici al 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 dismi ss 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 a ppeal in a civil action qualifies as jurisdictional only if Cong ress 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-pr ocessing rule . . . . Mand atory claim-processing rules are less stern. If prope rly 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) (Fed eral “Rules [of Appellate Procedure] 4(b)(1)(A) and 4(b)(4), which govern appeal s from defendants in criminal trials, do not have statutory grounding. . . . This c ourt . . . 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 noti ce of appeal for a ci vil case “within 60 days after entry of the judgment or order app ealed from if one of the parties is . . . a United States agency . . . [or] officer . . . sued in an o fficial capacity.” Fed. R. App. P. 4(a)(1)(B)(ii)-(iii).7 2019 WL 2455507, at *2 (10th Ci r. 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 [certa in 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 th e time to file an appeal r uns from the time the district court enters an order disposi ng of the Rule 59 motion.”). Improperly filed post-judgment motions th at 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 “nonco mpliant” Rule 59(e)

9 Although not precedential, we fi nd 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. 32.1.8 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 cour t 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 fo r one’s self, however, a person may not appear on another p erson’s behalf in the other’s cau se[.]” (brackets and quotations omitted)). When individual parties “hav e 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 (10t h 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 decl ine to hold that a party who successfully protected his right s must forfeit them in favor of a rigid reading of the rules.”).9 litigants.”); United States v. Miles , 572 F.3d 832, 837-38 (10t h 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, 8 56-57 (10th Cir. 2003) (unpublished) (striking a docketing stat ement 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 ente r 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 represen ted by an attorney may not personally make any filings, other than a no tice of appeal, or represent himself or herself unless otherwise orde red.” D.N.M.LR-Civ. 83.5. Under the Federal Rule of Civil Proce dure 17(c), a “representative[] may sue or defend on behalf of a minor or an incompet ent person.” Fed. R. Civ. P. 17(c)(1). “Rule 17(b) provides that issues of cap acity 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 atto rney either (a) must be “a dmitted to the bar of this court” in accordance with D.N.M.LR-Civ 83.2, or (b) “m ust associate with a member of the Federal Bar” in accordan ce with D.N.M.LR-Civ 83.3. See D.N.M.LR-Civ 83.4(a).10 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 affo rded great discretion regard ing control of the docket and parties.” United States v. Orozco , 916 F.3d 919, 92 5 (10th Cir. 2019) (quotations omitted). Federal Rule of Civil Proce dure 12(f) governs what a “court may strike from a pleading.” Ysai v. N.M. Judi cial 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, im pertinent, or scandalous matter . . . on its own.”). “G enerally, . . . motions, briefs , and memoranda may not be attacked by a motio n to strike.” Ysai , 616 F. Supp. 2d at 1184. “The exception to this princi ple 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 (10t h 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 (10t h Cir. Oct. 5, 1998) (unpublished) (noti ng “it was well within the discretion of the district court to stri ke” 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, 202011 When courts strike a f iling 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 th e 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 striki ng his motion to vacate, we fi rst address (A) his challenge to the district court’s orde r 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 orde r 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 noncomp liance with the [local] rules”).

13 On August 29, 2019, Mr. Bunn timely app ealed the district court’s July 1, 2019 order to strike his motion to v acate within the 60-day window required by Rule 4. See Fed. R. App. P. 4(a)(1)(B)(iii).12 abandoned or waived.” (quotations omitted)); United States v. Akers , 384 F. App’x 758, at *2 (10th Cir. 2010) (unpublished) (dismissi ng timely challenge as “waived” where issue in notice of app eal was “not address[ed] . . . in [appealing party’s] brief”). Even if Mr. Bunn could challenge the or der to strike base d 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 c ourt 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 stri ke 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 lo cal 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. § 45-5-303.13 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 juri sdiction[,] bears the burden of establishing our s ubject-matter jurisdiction.” United States v. CeballosMartinez , 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 fo r lack of jurisdiction. Mr. Bunn did not timely appeal the dist rict court’s order granting summary judgment. The court issued its final judgmen t on June 3, 2019. App. at 48-72. Mr.

14 Mr. Rankin filed severa l 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 (s triking Dist. Ct. Doc. 71), 79-80 (striking Dist. Ct. Doc. 73, 74). None of these fi lings 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 tim e to file an appeal”). Most of these documents were not the kinds of fili ngs that toll the time to appeal. See Dist. Ct. Doc. 59, 60, 64, 66, 67, 71, 73, 74. For si milar reasons stated re garding his motion to vacate, the untimely second motion to recons ider 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) (unpublis hed) (holding untimely post-judgment motions do not toll the time for filing a notice of appeal).14 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 no tice of appeal. Fed. R. A pp. 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 v acate, which was filed on June 27, 2019. See Doc. 10682645 at 5. 15 He argues the district court should not have st ruck 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 c ourt 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 postjudgment 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 moti on to dismiss, Mr. B unn 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 f iled on June 27, 2019. See Suppl. App. at 267. The filing was stamped with the da te June 27, 2019. Id. We use the date from the district court’s docket. The outcome here is the same under either date.15 consider his appeal of the district c ourt’s order granting summary judgment. See Bowles , 551 U.S. at 214. 16
III. CONCLUSION Because Mr. Bunn’s appeal of the summa ry 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 stri ke 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 moti on 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).