Unpublished Disposition, 935 F.2d 275 (9th Cir. 1990)

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U.S. Court of Appeals for the Ninth Circuit - 935 F.2d 275 (9th Cir. 1990)

SEED-FAITH CHURCH OF GOD, Curtis R. Richmond, Plaintiffs-Appellants,v.PRELIMINARY HOME FEDERAL SAVINGS & LOAN ASSOCIATION OF SANDIEGO, et al., Defendants-Appellees.

No. 90-55811.

United States Court of Appeals, Ninth Circuit.

Submitted May 29, 1991.* Decided June 4, 1991.

Before HUG, KOZINSKI and LEAVY, Circuit Judges.


Seed-Faith Church of God (the "Church") and Curtis Richmond appeal the district court's dismissal of their action to quiet title to real property located in Solana Beach, California. The district court dismissed because Curtis Richmond, a non-attorney, could not represent the Church and because the court lacked subject matter jurisdiction over the action. Richmond contends that (1) he could properly represent the Church, (2) the Internal Revenue Service ("IRS") was a proper party to the suit, (3) Judge Gilliam was biased and should have been recused, and (4) the district court improperly enjoined him from filing further actions regarding the Solana Beach property and imposed sanctions. We have jurisdiction pursuant to 28 U.S.C. § 1291 and affirm.

* Richmond's Representation of Seed Faith Church

While a non-attorney may represent himself in a lawsuit, he has no authority to appear as an attorney for others. C.E. Pope Equity Trust v. United States, 818 F.2d 696, 697 (9th Cir. 1987). Unincorporated associations, including churches, like corporations, must appear in court through an attorney. Church of the New Testament v. United States, 783 F.2d 771, 773 (9th Cir. 1986). A layperson can represent a church only in extraordinary circumstances. Id.

Here, the district court correctly found that Richmond, a non-attorney, had no authority to represent the Church. See C.E. Pope Equity Trust, 818 F.2d at 697. Thus, the district court correctly dismissed the action because the Church was not properly represented by counsel. See Church of the New Testament, 783 F.2d at 773.


Subject Matter Jurisdiction in the District Court

We review a dismissal for lack of subject matter jurisdiction de novo. Kruso v. International Tel. & Tel. Corp., 872 F.2d 1416, 1421 (9th Cir. 1989), cert. denied, 110 S. Ct. 3217 (1990). The United States, as sovereign, may not be sued without its consent, and the terms of consent define the court's jurisdiction to hear the suit. United States v. Testan, 424 U.S. 392, 399 (1976). Here, Richmond has not shown that Congress has provided a statutory waiver of sovereign immunity to maintain this action against the IRS.

Richmond contends that the district court had jurisdiction pursuant to 28 U.S.C. § 2409a. Section 2409a provides that the United States may be named as a defendant in an action to quiet title to "real property in which the United States claims an interest." 28 U.S.C. § 2409a(a). Thus, this statute confers jurisdiction for maintaining suits against the United States, not the IRS. However, even if Richmond had amended his complaint to name the United States as defendant, the court still lacked jurisdiction to hear the action.

Section 2409a is inapplicable because, prior to the commencement of this action on February 23, 1990, the property had been sold to a third party. Thus, because the United States did not claim an interest in the real property, the district court did not have jurisdiction under section 2409a. Cf. Bank of Hemet v. United States, 643 F.2d 661, 665 (9th Cir. 1981) (where the United States held title to property as of the filing of the action, jurisdiction under section 2409a was not divested by the United States' sale of the property prior to trial); see also 28 U.S.C. § 2409a(e) ("if the United States disclaims all interest in the real property ... at any time prior to the actual commencement of the trial, ... the jurisdiction of the district court shall cease"). Accordingly, the district court correctly dismissed the action for lack of subject matter jurisdiction.


Recusal Motion

We review the denial of a recusal motion for abuse of discretion. Sewer Alert Comm. v. Pierce County, 791 F.2d 796, 798 (9th Cir. 1986). A motion for recusal of a judge pursuant to 28 U.S.C. § 144 will be granted only upon a showing of bias or prejudice from an extrajudicial source. Toth v. Trans World Airlines, Inc., 862 F.2d 1381, 1388 (9th Cir. 1988). A motion for recusal which does not point to an extrajudicial basis for bias is legally insufficient. Id. The judge against whom the motion for recusal is filed may determine the legal sufficiency of the affidavit. Id.; United States v. Azhocar, 581 F.2d 735, 738 (9th Cir. 1978), cert. denied, 440 U.S. 907 (1979). "Only after the legal sufficiency of the affidavit is determined does it become the duty of the judge to 'proceed no further' in the case." Toth, 862 F.2d at 1388 (quoting Azhocar, 581 F.2d at 738).

Here, Richmond failed to point to any extrajudicial source for the alleged bias of Judge Gilliam. The basis of the motion for recusal was Judge Gilliam's refusal to grant Richmond's requested continuance. This affidavit was legally insufficient to establish bias. See Toth, 862 F.2d at 1388. Richmond's argument that another judge should have heard the recusal motion is also unavailing. See id; Azhocar, 581 F.2d at 738.


Injunction and Sanctions

Richmond filed a notice of appeal on June 12, 1990 from the district court's order dismissing the action and entering judgment. At the time, a motion by defendants for an injunction preventing Richmond from filing any further actions regarding this property and for sanctions against Richmond under Rule 11 was pending. On July 5, 1990, the district court granted the motion for a permanent injunction and sanctions. Richmond did not file a notice of appeal from the July 5th order.

Where no notice of appeal is filed from a post-judgment order awarding attorneys' fees, this court lacks jurisdiction to review the order. Culinary & Serv. Employees Union v. Hawaii Employee Benefit Admin., Inc., 688 F.2d 1228, 1232 (9th Cir. 1982). Accordingly, we lack jurisdiction to review Richmond's arguments regarding the injunction and the Rule 11 sanctions. See id.



The panel unanimously finds this case suitable for decision without oral argument. Fed. R. App. P. 34(a); 9th Cir.R. 34-4


This disposition is not appropriate for publication and may not be cited to or by the courts of this circuit except as provided by 9th Cir.R. 36-3