Southwest Exp. Co., Inc. v. I. C. C.

• Decision Date: 12 March 1982
• Docket Number: No. 81-4445,81-4445
• Citation: 670 F.2d 53
• Parties: SOUTHWEST EXPRESS CO., INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondents.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 53

670 F.2d 53

SOUTHWEST EXPRESS CO., INC., Petitioner, v. INTERSTATE COMMERCE COMMISSION, Respondents.

No. 81-4445.

United States Court of Appeals Fifth Circuit.

March 12, 1982.

T. C. Hope, President, Southwest Exp. Co., Inc., pro se.

Charles Alan Stark, ICC, Robert B. Nicholson, Stephen F. Ross, Dept. of Justice, Washington, D. C., for respondents.

Hugh T. Matthews, Dallas, Tex., intervenor, Steere Tank Lines.

Petition for Review of an Order of the Interstate Commerce Commission.

Before GEE, GARZA and TATE, Circuit Judges.

PER CURIAM:

On January 28, 1982 we entered an order that this petition for review on behalf of Southwest Express Company would be dismissed unless the corporation filed pleadings in this court on or before February 15th, showing good cause to the contrary. 667 F.2d 456. Since the filing of February 16 does not show such good cause, the petition for review will be dismissed.

As our order recites, the corporation seeks to review the Commission's revocation of a certificate of authority previously issued to that corporation. We had previously denied the Commission's motion to dismiss the petition for review. Instead, we granted an alternative motion to hold the proceedings in abeyance until Southwest amended its petition to cure certain deficiencies. These included the petition's failure to specify the Commission's order of which review was sought or otherwise to comply with the requirements of 28 U.S.C. § 2344. However, a further principal complaint was that the corporation's petition for review of the Commission's revocation of its certificate was not signed by an attorney authorized to represent other parties in proceedings before this court. On January 26, 1982, Southwest through T. C. Hope, its president, filed a letter reiterating its position that it need not appear through an attorney but could do so in proper person through T. C. Hope, its president and principal stockholder, a non-lawyer. The letter requested this court to enter its decision on the petition without further formality, so that Southwest may secure from a higher court a review of its contention that, for adequate appearance before this court, its petition might be signed by its non-lawyer president.

In response to our order to show cause, on February 16, 1982, a motion was filed by T. C. Hope "an individual d/b/a Southwest Express Co, Inc. to intervene and take over the cause filed by the original petition of Southwest Express Co., Inc." The petition alleges that the Southwest corporation "has given up its right to sue to its owner, Mr. Timothy C. Hope, an individual who wishes to continue suit under his own name. Mr. Timothy C. Hope is sole owner of Southwest Express Co., Inc." The petitioner Hope then prayed that he be permitted to continue this proceeding "pro se". He concluded that, "(i)f this amendment is not accepted, then the petitioner requests its cause be appealed to the next Court of review." ¹

In their contention that the corporation ("Southwest") may proceed in proper person through its president (Hope), or that Hope himself may prosecute Southwest's action, these petitioners (Southwest and Hope) apparently rely upon 28 U.S.C. § 1654: "In all courts of the United States the parties may plead and conduct their own cases personally or by counsel as, by the rules of such courts, respectively, are permitted to manage and conduct causes therein."

The essential fallacy in the petitioners' position is their failure to recognize that Southwest, the corporation, and Hope, its president, are different legal persons, and that Hope may appear for or represent Southwest in a judicial proceeding only if authorized by law or rule. The only complaint raised in the pleading before us is that Southwest, the corporation, had its certificate revoked. Unless Southwest can enter an appearance or file pleadings by itself as a corporation, or through Hope as its president, the petitioners have not shown cause that excuses dismissal of the petition for review for failure to cure the inadequacy of their appearance before this court, as well as the other procedural deficiencies of their petition, despite the court's order that these deficiencies must be cured.

The contention that a corporation may enter an appearance in proper person or through its president has been consistently rejected when raised. In a decision that upheld the dismissal of pleadings filed on behalf of a corporation by its non-lawyer president, the court stated: "The rule is well established that a corporation can appear in a court of record only by an attorney at law." ² Flora Construction Company v. Fireman's Fund Insurance Co., 307 F.2d 413, 414 (10th Cir. 1962). See also Algonac Manufacturing Company v. United States, 458 F.2d 1373, 1375 (Ct.Cl.1972). The functional and historical reasons for the rule are set forth in Turner v. American Bar Ass'n, 407 F.Supp. 451, 476 (1975), a leading case (that had resulted from consolidation of cases from all over the United States at the direction of the Chief Justice in order to consider the constitutional and statutory right of unlicensed lay counsel to assist pro se petitioners):

Corporations and partnerships, both of which are fictional legal persons, obviously cannot appear for themselves personally. With regard to these two types of business associations, the long standing and consistent court interpretation of § 1654 is that they must be represented by licensed counsel....