Jarrett v. US Sprint Communications Co., 92-3417

• Decision Date: 26 April 1994
• Docket Number: No. 92-3417,92-3417
• Parties: Theola A. JARRETT, Plaintiff-Appellant, v. US SPRINT COMMUNICATIONS COMPANY, Defendant-Appellee.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 256

22 F.3d 256

28 Fed.R.Serv.3d 1178

Theola A. JARRETT, Plaintiff-Appellant, v. US SPRINT COMMUNICATIONS COMPANY, Defendant-Appellee.

No. 92-3417.

United States Court of Appeals Tenth Circuit.

April 26, 1994.

Karon D. Ramsey, Kansas City, MO, for plaintiff-appellant.

J. Nick Badgerow, Spencer Fane Britt & Browne, Overland Park, KS, for defendant-appellee.

Before MOORE, Circuit Judge, McWILLIAMS, Senior Circuit Judge, and COOK, Senior District Judge. ^*

H. DALE COOK, Senior District Judge.

The parties have agreed that this case may be submitted for decision on the briefs. See Fed.R.App.P. 34(f); 10th Cir.R. 34.1.2. The case is therefore ordered submitted without oral argument.

The plaintiff-appellant appeals from the district court's order granting defendant's motion to dismiss. The factual background is as follows. Plaintiff received her Right-to-Sue notice from the EEOC on July 31, 1990. Pursuant to 42 U.S.C. Sec. 2000e-5(f)(1), one has ninety days from the receipt of such notice in which to bring a Title VII claim. On October 25, 1990 (i.e., within the 90-day limitation) plaintiff submitted to the U.S. Court Clerk a form complaint alleging discrimination, a form request for appointment of counsel, and a form request to proceed in forma pauperis (IFP). The court clerk did not file these items of record. The district court denied plaintiff's request for pauper status on October 29, 1990 but did not rule upon the request for appointment of counsel. The order of denial does not state a reason, but we note that plaintiff listed sources of income from social security and disability benefits and the ownership of a three-bedroom house worth $80,000.00. The denial of the IFP request has not been raised as an issue on appeal. On April 11, 1991, over five months after the denial of IFP status, plaintiff paid the filing fee and her complaint was officially filed by the Court Clerk's office. Plaintiff took no action to obtain issuance or service of summons.

On August 1, 1991, plaintiff filed a First Amended Complaint, which alleged violations of Title VII, 42 U.S.C. Secs. 1981, 1983, 1985 and a pendent state law claim. She also obtained issuance of a summons. This was the first notice to defendant of the lawsuit. Defendant filed an answer to the First Amended Complaint on September 10, 1991 and filed a motion to dismiss the action on January 10, 1992. One basis for dismissal asserted as to the Title VII claim was that plaintiff "failed to file suit within the period prescribed by statute following receipt of the Notice of Right to Sue letter." Plaintiff filed a Second Amended Complaint on January 23, 1992 which added a claim for alleged violation of 42 U.S.C. Sec. 1982.

On May 22, 1992, the district court granted defendant's motion to dismiss as to all counts. The basis for the dismissal of the Title VII claim was that it was time-barred by the statute of limitation, the complaint not having been filed within the 90-day requisite period. Plaintiff then filed a motion to reconsider, which was denied by order of October 20, 1992. Plaintiff has only appealed as to the Title VII claim, although in the conclusion to appellant's opening brief she also asks this court to vacate the dismissal of the state law claim, which result would necessary follow, inasmuch as the basis for dismissal of that claim was absence of federal jurisdiction. The district court's initial order of dismissal erroneously stated that the court had denied both the IFP motion and the request for counsel by order of October 29, 1990, when in fact the motion for appointment of counsel was still pending. The court acknowledged the error in denying plaintiff's motion to reconsider, but ruled that the 90-day limit was tolled only as long as the IFP motion was pending and that the mere pending of a motion for appointment of counsel did not toll the statute of limitation. This appeal followed. As purely legal issues are presented, our review is de novo. Our jurisdiction arises under 28 U.S.C. Sec. 1291 and we affirm.

First, we must address whether the filing fee requirement of 28 U.S.C. Sec. 1914 is of a jurisdictional nature. The district court below implicitly held that it is by accepting the date of formal filing as the date of commencement under Fed.R.Cv.P. 3. Circuit court authority exists holding that it is not. See Wrenn v. American Cast Iron Pipe Co., 575 F.2d 544, 547 (5th Cir.1978). ¹ The court in Rodgers on Behalf of Jones v. Bowen, 790 F.2d 1550, 1552 (11th Cir.1986), being bound by Fifth Circuit precedent, necessarily followed this prior ruling and went on to hold that a complaint is "filed" for statute of limitations purposes when it is in the actual or constructive possession of the clerk, regardless of the untimely payment of the required filing fee. ² The Seventh Circuit has made a similar ruling in connection with a Title VII case in Gilardi v. Schroeder, 833 F.2d 1226, 1233 (7th Cir.1987). However, the same court later ruled that a complaint was not filed constructively prior to payment of the filing fee, despite being in the court clerk's custody. Robinson v. America's Best Contacts and Eyeglasses, 876 F.2d 596, 598 (7th Cir.1989). The two cases are factually distinct in that Gilardi addresses "filing" for purposes of Fed.R.Cv.P. 3 while Robinson concerns when a complaint is deemed filed under Fed.R.Civ.P. 4(j), but it is unclear why the two rules would mandate different results. The same court broaches the issue in Smith-Bey v. Hospital Administrator, 841 F.2d 751, 757 n. 5 (7th Cir.1988), but we need not make such a distinction under the facts of this case.

There is district court authority supporting either argument as well. Favoring the "constructive filing" concept is, for example, Bolduc v. United States, 189 F.Supp. 640 (D.Maine 1960). Notable for the contrary view are Wanamaker v. Columbian Rope Co., 713 F.Supp. 533, 537-539 (N.D.N.Y.1989) and Keith v. Heckler, 603 F.Supp. 150, 156-157 (E.D.Va.1985). This court has not previously spoken on the issue. ³

The rationale behind "constructive filing" is obvious. Suppose a litigant presents a complaint and IFP petition to the court clerk within the statute of limitation period, but the court clerk does not officially file the complaint. Then, the district court does not rule on the IFP petition until after the limitation period. Even if pauper status is granted, the complaint will not be timely filed. Accordingly, to preserve the litigant's rights, courts have deemed the complaint "filed" upon presentation to the court clerk when accompanied by an IFP motion, so that the formal filing "relates back"--upon grant of pauper status--to the "lodging" of the complaint with the clerk. Such a legal fiction was employed by the Supreme Court in Houston v. Lack, 487 U.S. 266, 108 S.Ct. 2379, 101 L.Ed.2d 245 (1988), holding that a prisoner's notice of appeal is "filed" when it is given to prison authorities for mailing to the district court. The fiction is not troublesome when the IFP petition is granted; the complaint is filed and the case proceeds. The thorny issue, as in this case, arises when the litigant is denied leave to proceed IFP. We articulate no absolute rule, but leave the matter to each district court, within the bounds of Sec. 1914. If the District of Kansas does not formally file a complaint until the filing fee is paid, such action does not violate the statutory provision and is notice to a plaintiff that the filing fee requirement is enforced. We hold that the fiction of "constructive filing" only exists until the IFP motion is ruled upon. Courts have acknowledged the concomitant issue: if the IFP petition is denied, should the plaintiff be permitted a "grace period" in which to pay the filing fee, during which time "relation back" is still available? See, e.g., Johnson v. Brown, 803 F.Supp. 1414, 1419 (N.D.Ind.1992) ("Undoubtedly, there are limits to the rule stated in [Rodgers on Behalf of Jones v. Bowen, 790 F.2d 1550 (11th Cir.1986) ]; a plaintiff should not be allowed to wait many months or years between submission of the complaint and compliance with the filing fee requirement.") Again, we establish no bright-line rule for all cases. Here, plaintiff waited over five months after denial of IFP status to pay the filing fee. This represents, in effect, a "fresh" ninety-day time period and over two additional months for good measure. We conclude, under the facts of this case, that this was an unreasonable amount of time in which to tender the filing fee. The mere filing of an IFP motion should not permit a litigant to more than double the amount of time established by Congress for the commencement of a Title VII action. Thus, we hold that the formal filing of April 11, 1991 does not "relate back" to the "constructive filing" of October 25, 1990 to constitute timely filing of the complaint.

We next turn specifically to the effect of the IFP petition on the ninety-day period itself. Plainly, the statute of limitation is tolled while the IFP petition is pending. See Paulk v. Department of Air Force, 830 F.2d 79, 83 (7th Cir.1987). Here, the district court ruled upon the application expeditiously, denying the petition within four days of its filing. Therefore, we hold that the 90-day limitation period was only tolled for those four days, and the additional three days required by Fed.R.Civ.P. 6(e). On the general issue posed, Tenth Circuit precedent exists which must be consulted. The ninety-day filing limit is not jurisdictional, but is a requirement that, like a statute of limitation, is subject to waiver, estoppel and equitable tolling. Gonzalez-Aller Balseyro v. GTE Lenkurt, Inc., 702 F.2d 857, 859 (10th Cir.1983). No questions of waiver or estoppel are present under these facts, and we have taken a strict view of what necessitates equitable tolling. In this circuit, a Title VII time limit will be tolled only if there has been active deception of the...