K., Farzana v. IN Dept Educ ( 2007 )

In the
United States Court of Appeals
For the Seventh Circuit
____________
No. 06-1632
FARZANA K., individually and as next friend of S.K.,
Plaintiff-Appellant,
v.
INDIANA DEPARTMENT OF EDUCATION, et al.,
Defendants-Appellees.
____________
Appeal from the United States District Court for the
Northern District of Indiana, Hammond Division.
No. 2:05-CV-266—Rudy Lozano, Judge.
____________
ARGUED DECEMBER 8, 2006—DECIDED JANUARY 4, 2007
____________
Before EASTERBROOK, Chief Judge, and POSNER and
RIPPLE, Circuit Judges.
EASTERBROOK, Chief Judge. Few details of this litiga-
tion under the Individuals with Disabilities Education Act
matter to this appeal, because the district court did not
reach the merits. Instead it dismissed the complaint for
want of jurisdiction to the extent that the parent and
child seek relief from the school system in West Lake,
Indiana. Claims against state officials remain pending,
but a partial final judgment under Fed. R. Civ. P. 54(b) has
led to this appeal with respect to all other defendants.
2 No. 06-1632
S.K. is an autistic teenager. His mother Farzana K.
believes that the public schools are not providing an
educational program appropriate to S.K.’s needs. In 2004
she sought judicial relief. The district court dismissed her
suit in December 2004 after concluding that administra-
tive remedies remained open. The final administrative
decision was made on June 6, 2005, and the parties agree
that Farzana K. had 30 days to seek judicial review. That
period comes from Indiana law. The district court held
that 20 U.S.C. §1415(i)(2)(B), which sets 90 days as the
window when a state lacks “an explicit time limitation”,
does not apply in light of Ind. Code §4-21.5-5-5, which
the judge deemed “explicit” for this purpose. In this court
Farzana K. does not contest that ruling; we need not
decide whether it is correct.
Farzana K.’s lawyer made the mistake of waiting until
late afternoon of the last possible day: July 6, 2005. The
Northern District of Indiana accepts electronic filings,
and counsel submitted the complaint online. Making a
second mistake, counsel used the docket number of the
2004 suit. The computer rejected the filing with the
notation that the case had been closed. (This did not,
however, prevent the court’s computer from forwarding
copies to the school system’s lawyers.) Farzana K.’s lawyer
then dispatched paper copies, but the courier did not
reach the courthouse until the clerk’s office had closed.
On July 8 counsel tendered a new complaint, identical to
the one the computer had rejected except that the space
for a docket number was blank and the word “amended”
had been deleted from in front of “complaint.” The dis-
trict court held that July 8 was too late—that, indeed,
counsel’s delay had deprived the court of subject-matter
jurisdiction. 2005 U.S. Dist. LEXIS 38561 (N.D. Ind. Dec.
20, 2005). The court added that there was a second
jurisdictional defect: the complaint had not been verified,
as Indiana law requires.
No. 06-1632 3
We may assume that Indiana’s courts treat both delay
and failure to verify as “jurisdictional” failings. Yet
whether federal jurisdiction exists is a matter of federal
law, and there is no doubt about the source of the district
court’s power: 28 U.S.C. §1331, which authorizes federal
courts to entertain claims arising under federal law,
including the Individuals with Disabilities Education
Act. Timely filing may be a condition to success, but it is
not a jurisdictional requirement in federal court. See, e.g.,
Day v. McDonough, 126 S. Ct. 1675, 1681 (2006); Zipes v.
Trans World Airlines, Inc., 455 U.S. 385 (1982). The law
is full of rules that are mandatory in the sense that
courts must enforce them punctiliously if a litigant
insists. Rules are not jurisdictional, however, no matter
how unyielding they may be, unless they set limits on the
federal courts’ adjudicatory competence. See, e.g., Arbaugh
v. Y&H Corp., 126 S. Ct. 1235 (2006); Eberhart v. United
States, 546 U.S. 12 (2005); Kontrick v. Ryan, 540 U.S. 443
(2004). Federal courts have been authorized to resolve
disputes under the IDEA, so procedural hurdles—whether
these concern timely filing or verification—are not “juris-
dictional.” Waiver and forfeiture therefore are possible,
while jurisdictional rules must be enforced even if the
litigants are content to relinquish their rights.
“Except when otherwise specifically provided by rule
or statute, pleadings need not be verified or accompanied
by affidavit.” Fed. R. Civ. P. 11(a). This means federal
rule or federal statute, because state requirements for
pleading do not apply in federal litigation. Rules estab-
lished under the Rules Enabling Act supersede state
norms. See, e.g., Walker v. Armco Steel Corp., 446 U.S. 740
(1980); Hanna v. Plumer, 380 U.S. 460 (1965); Hefferman
v. Bass, 467 F.3d 596, 599 (7th Cir. 2006); AXA Corporate
Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272,
277 (7th Cir. 2003). Federal and state tribunals may (and
do) use their own rules of procedure. Sometimes it can be
4 No. 06-1632
hard to determine whether a given norm is procedural or
substantive, but when a federal rule covers the subject it
must be applied no matter how the issue is characterized;
that’s the point of Walker and Hanna. No federal rule or
statute requires complaints under the IDEA to be verified,
and the district court erred in dismissing the complaint for
failure to comply with a verification requirement that
governs only in state court.
That leaves the 30-day time limit. Plaintiff submits
that equitable tolling excuses the delay, but that doc-
trine deals with situations in which timely filing is not
possible despite diligent conduct. See, e.g., Cada v. Baxter
Healthcare Corp., 920 F.2d 446 (7th Cir. 1990). Waiting
until the last hours is not diligent; the errors that often
accompany hurried action do not enable the bungling
lawyer to grant himself extra time. See Johnson v.
McBride, 381 F.3d 587 (7th Cir. 2004). Nothing pre-
vented plaintiff ’s lawyer from acting a day or a week
earlier, so that counsel could recover from any gaffe. If
counsel blundered to his client’s prejudice, the remedy
is malpractice litigation against the culprit, not the
continuation of litigation against an adversary who
played no role in the error. See, e.g., Pioneer Investment
Services Co. v. Brunswick Associates L.P., 507 U.S. 380,
396-97 (1993); United States v. 7108 West Grand Avenue,
15 F.3d 632 (7th Cir. 1994).
It is hard to see why a court should invoke equitable
tolling to supply a litigant with more time to apply for
review of an agency’s decision. The period for seeking
administrative review, like the time for appealing a
decision of the district court, usually is brief because a
contest is ongoing. The loser simply notifies the other
side (by a petition for review or a notice of appeal) that
argument will resume in another forum. A lawyer who
misses the time to file a notice of appeal cannot invoke
“equitable tolling” to justify the delay. Rules may allow
No. 06-1632 5
judges to grant extra time. See Fed. R. App. P. 4(a)(5), (6).
Once the time as extended under the Rules lapses, how-
ever, common-law tolling is unavailable; the existence of
rules specifying when (and how far) time may be ex-
tended is incompatible with an open-ended power to add
extra time on “equitable” grounds. Indeed, the Supreme
Court has characterized the time limit for appellate
review within a unitary system as “jurisdictional,” e.g.,
Browder v. Director of Corrections, 434 U.S. 257 (1978),
and although Eberhart calls that characterization into
question, the Court continues to insist that “mandatory”
rules be enforced whether or not they are dubbed “juris-
dictional.” Allowing more time under the rubric of equita-
ble tolling, when a federal rule covers the subject of
extensions, would just contradict the rule—and for no
good reason. Once a litigant has received one or more
decisions (whether from district courts or hearing officers
under the IDEA) after formal adjudication, there is little
point in bending the rules to allow another.
Because this 30-day time limit has been borrowed from
Indiana law, however, whether it is subject to equitable
tolling (and, if so, under what circumstances) is a question
of state law. Farzana K. does not cite any Indiana deci-
sion holding that the period supplied by Ind. Code §4-21.5-
5-5 may be extended via a tolling doctrine; our own
research has not turned up any such holding. Instead
Indiana’s courts treat this time limit as absolute. See
Warram v. Stanton, 415 N.E.2d 114 (Ind. App. 1981).
Tolling therefore cannot save this litigation.
So was this complaint filed on time? It was. Counsel
transmitted a complaint electronically on July 6, the 30th
day after the state agency’s decision. Litigation in fed-
eral court commences with the filing of the complaint,
see Fed. R. Civ. P. 3, and the plaintiff then has 120 days
to serve copies on each defendant, see Fed. R. Civ. P. 4(m).
All defendants received copies well inside the 120-day
6 No. 06-1632
window after filing (indeed, all but the state agency
received the complaint electronically on July 6).
Defendants insist that this complaint was not “filed”
because a computer rejected it. Counsel certainly could
and should have avoided this problem by submitting
the complaint as the opening salvo in a fresh case, rather
than as a new round in an old case. (Neither side con-
tests the district court’s decision to dismiss rather than
stay the first suit. Dismissal is the norm when state
remedies remain to be exhausted. See Rose v. Lundy, 455
U.S. 509 (1982), modified slightly by Rhines v. Weber, 544
U.S. 269 (2005).) Still, the fact remains that the com-
plaint was tendered to the clerk’s office on the 30th day,
and the computer’s reaction does more to show the
limits of some programmer’s imagination than to render
the suit untimely. Had a paper copy of the complaint
been handed over the counter on July 6, a deputy clerk
would have crossed out the old docket number, stamped a
new one, and filed the document; there is no reason to
throw this suit out of court just because the e-filing system
did not know how to take an equivalent step.
By refusing to accept complaints (or notices of appeal)
for filing, clerks may prevent litigants from satisfying
time limits. To prevent this—to ensure that judges rather
than administrative staff decide whether a document is
adequate—Fed. R. Civ. P. 5(e) was amended in 1993 to
require clerks to accept documents tendered for filing. The
last sentence of this rule provides: “The clerk shall not
refuse to accept for filing any paper presented for that
purpose solely because it is not presented in proper form
as required by these rules or any local rules or practices.”
See also Fed. R. Civ. P. 83(b). The software that operates
an e-filing system acts for “the clerk” as far as Rule 5
is concerned; a step forbidden to a person standing at a
counter is equally forbidden to an automated agent that
acts on the court’s behalf.
No. 06-1632 7
Defendants contend that trying to file a complaint in
a closed case is not a formal error, so that Rule 5(e) does
not apply. Yet the equivalent mistake in filing paper
copies is writing the wrong docket number on top of the
papers, and that’s an error of form rather than substance.
Papers with bad docket numbers, or the wrong size (say,
legal rather than letter), or with sections in the wrong
order (say, a summary of argument ahead of the state-
ment of facts), all display improper form.
Counsel may have used the old docket number in an
effort to avoid paying a second filing fee. That raises the
question what happens (for limitations purposes) if a
complaint is lodged with the clerk on time, but the fee is
not paid until after the period of limitations has expired.
We held in Robinson v. Doe, 272 F.3d 921 (7th Cir. 2001),
relying in part on Rule 5(e), that a complaint must be
accepted and filed even if neither the fee nor an applica-
tion to proceed in forma pauperis is enclosed, and that
the complaint alone satisfies the statute of limitations.
Accord, McDowell v. Delaware State Police, 88 F.3d 188 (3d
Cir. 1996) (likewise relying on Rule 5(e)). See also
Williams-Guice v. Chicago Board of Education, 45 F.3d 161
(7th Cir. 1995). If the fee is not paid promptly, however,
the court is entitled to dismiss the complaint for failure to
prosecute, and that dismissal will be conclusive. See Fed.
R. Civ. P. 41(b). A plaintiff cannot avoid all required fees,
but brief delay in payment is not a fatal misstep.
Very few appellate decisions other than Robinson and
McDowell have dealt with Rule 5(e). McClellon v. Lone
Star Gas Co., 66 F.3d 98 (5th Cir. 1995), the only one
worth mention, held that a district court must accept
a “complaint” whose complete allegations read: “I have
been denied the opportunity to return to work after
being released from the doctor from an on-the-job in-
jury.” The clerk had to accept the paper (which had been
filed on the last possible day) and require plaintiff to
8 No. 06-1632
elaborate later, the court held. Rule 5(e) will serve its
function best if “proper form” covers all matters regulated
by the rules of procedure. Clerks thus must take in
whatever is tendered to them; a document may be re-
jected later if a judicial officer finds a problem, but the
initial filing ensures that the process of vetting papers
for compliance with the rules does not prevent satisfac-
tion of time limits. An e-filing system likewise must ac-
cept every document tendered for filing; it cannot reject
any paper that the clerk must accept.
Long before Rule 5(e) was amended to limit the clerk’s
power to reject documents tendered for filing, the Supreme
Court held that a complaint (actually) filed in the
wrong court generally satisfies a federal statute of lim-
itations, provided that suit is re-filed in the right court
promptly after the misadventure in the wrong forum
ends. See Burnett v. New York Central R.R., 380 U.S. 424
(1965); Herb v. Pitcairn, 325 U.S. 99 (1945). These deci-
sions are not directly applicable; recall that we have been
proceeding on the assumption that state rather than
federal law supplies the period of limitations. Still, it
would be odd if Rule 5(e), a part of federal law that
governs how to file even when the time to file comes from
state law, were deemed less favorable to plaintiffs than
Burnett and Herb.
Counsel tendered a complaint for filing on July 6; it
should have been accepted even though its deficiencies
required amendment to show that a new suit was being
initiated. Because the complaint was timely, and verifica-
tion is unnecessary, the district court’s judgment is
vacated and the case remanded for decision on the merits.
No. 06-1632 9
A true Copy:
Teste:
________________________________
Clerk of the United States Court of
Appeals for the Seventh Circuit
USCA-02-C-0072—1-4-07