Curuta v. Off of Chief Admin, et al

United States Court of Appeals
Fifth Circuit
F I L E D
January 20, 2005
Charles R. Fulbruge III
Clerk
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT
No. 03-60841
Summary Calendar
CORNELIU CURUTA,
Petitioner,
versus
OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER;
NORTH HARRIS MONTGOMERY COMMUNITY COLLEGE DISTRICT,
Respondents.
Petition for Review of an Order of
the United States Department of Justice
_______________________________________________________
Before REAVLEY, JOLLY, and HIGGINBOTHAM, Circuit Judges.
REAVLEY, Circuit Judge:
Corneliu Curuta appeals the denial of his complaint by the Office of the Chief
Administrative Hearing Officer (hereinafter, “OCAHO”) against the North Harris
Montgomery Community College District (hereinafter, “the District”), alleging that he
was not hired to teach additional classes because of his citizenship status. The appeal is
dismissed.

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I.
Procedural and Factual Background
The OCAHO is the administrative agency responsible for hearing complaints
under the Immigration and Nationality Act which prohibits employers from
discriminating against any protected individual with respect to hiring, recruiting, or
discharging the individual from employment because of his or her citizenship status. See
8 U.S.C. § 1324b (a)(1).
On August 12, 2003, the Administrative Law Judge (hereinafter, “ALJ”) granted
the District’s motion for summary decision, finding that Curuta had established only a
subjective perception of discrimination that was insufficient to show pretext. On October
15, 2003, the clerk’s office of this court received Curuta’s petition for review.
II.
Jurisdiction
The petitioner in an OCAHO case has 60 days “after the entry of [a] final order” to
“seek a review of such order in the United States court of appeals for the circuit in which
the violation is alleged to have occurred.” 8 U.S.C. 1324b (i)(1). In an agency case such
as this in which no docket exists, the entry date for limitations purposes occurs when the
final order is signed, any necessary agency seal is affixed, and the order is served. See

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1 536 F.2d 610, 614-16 (5th Cir. 1976).
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Chem-Haulers, Inc. v. United States.1 The ALJ’s final order was signed and served to the
parties on August 12, 2003. Sixty days after August 12, 2003 would be Tuesday, October
14, 2003 because the 60th day, October 11, was a Saturday and the following Monday
was a federal holiday. As Curuta’s appeal was not received until October 15, 2003, it
was arguably one day late.
Curuta argues that he mailed the appeal within 60 days of the date of entry and
that this court should adopt the “mailbox rule” by which an appeal is timely so long as it
is mailed within the prescribed period. The District argues that the Federal Rules of
Appellate Procedure clearly state that a filing with this court is not complete unless the
document to be filed is received by the clerk by the filing deadline.
Pursuant to FED. R. APP. P. 15(a), an individual seeking review of an administrative
agency order must file their petition for review with the appellate court clerk “within the
time prescribed by law.” The filing is not timely “unless the clerk receives the papers
within the time fixed for filing.” FED R. APP. P. 25(a)(2)(A). This court may not extend
the time to file a request to review an order of an administrative agency unless some other
legal provision permits an extension. FED. R. APP. P. 26(b)(2). The Rules make an
exception for a brief or appendix that is mailed within the filing deadline, but Curuta’s
petition does not fall under this exception. FED. R. APP. P. 25(a)(2)(B).
This Court has rejected the “mailbox rule” with respect to appeals challenging

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2 993 F.2d 508, 510 (5th Cir. 1993).
3 951 F.2d 1186, 1188 (10th Cir. 1991).
4 3 F.3d 1271, 1273 n.4 (9th Cir. 1993).
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administrative proceedings when the statute in question requires the petition to be filed by
a specific date. See Guirguis v. INS.2 In § 1324b (i)(1), however, the statute requires the
aggrieved party to “seek a review” not later than 60 days after the entry of a final order.
In Mesa Airlines v. United States,3 the Tenth Circuit held that 1324b (i)(1)
required the petition to be filed with the clerk’s office within 60 days of the date of entry.
The Ninth Circuit made a similar assumption in Tovar v. United States Postal Service.4
We agree that the statute requires a petition for review of a final order to be filed and
received within 60 days of the date of entry. The language in § 1324b (i)(1) requiring the
petitioner to “seek a review” does not create an exception to the rule that appeals must be
received, not mailed, by the filing deadline. Curuta’s petition was not received within 60
days of the date of entry of the ALJ’s final order, and it is therefore untimely.
III.
The District’s Motion for Costs
In their original brief, the District requested that it be awarded costs related to the
appeal. “If a court of appeals determines that an appeal is frivolous, it may, after a
separately filed motion or notice from the court and reasonable opportunity to respond,
award just damages and single or double costs to the appellee. FED. R. APP. P. 38. The

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District failed to file a separate motion and does not justify the award. The request for
costs is denied.
Appeal Dismissed.

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